To Caucus Or Not To Caucus – That Is The Question

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In caucusing, the mediator meets separately with a party in the absence of the other party. Although more rare, some mediators also practice “pre-caucusing”, in which the first meetings of the mediation take place with the mediator and each individual party, prior to the first joint meeting, sometimes on a different day than the first 3-way mediation session.

Caucusing can vary greatly. It can consist of one or two short separate meetings with the mediation clients during a mediation session (perhaps to resolve issues, big or small, at times of impasse). Or it can be the mediation equivalent of “shuttle diplomacy,” where the mediator goes from room to room, mediating in what is essentially a continuous series of caucuses.

Caucusing can be seen as a “carefully considered strategic intervention” (Chip Rose, “Poles Apart”, Family Mediation News (Winter 2007), Association for Conflict Resolution.) Some mediators feel that caucusing gives the mediator too much power to interpret messages, define issues, and engineer a result, and that these acts should be left to the parties themselves. These mediators see themselves as facilitators, with the real power held by the parties.

Other mediators use caucusing routinely as a technique. They view it as an opportunity for a mediator to work separately with mediation clients to help them process the messages sent by the other party in private, to give a party individual care and attention, and to promote resolution of issues privately with each of the parties.

Some mediators (myself included) see caucusing as interfering with the transparency of the mediation process. These mediators believe that the caucus corrupts the free flow of information and thoughts that is important to mediation, particularly family/divorce mediation.

And caucusing can pose other great dangers to the process.

Neutrality and lack of bias (to my mind) are the most powerful tools that the mediator has to offer. They let the parties both feel protected in the process, and permit one person (the mediator) to function something like a “universal joint” (to use an automotive analogy) or as Chip Rose terms it, a “communication conduit,” in reflecting and accommodating the different needs and points of views of the mediation clients.

When there are private conversations between the mediator and one party, the other party may think (sometimes rightly, sometimes wrongly) that the mediator is no longer neutral when he/she comes back into the room. This real danger can overshadow the possible benefits of caucusing. And lack of neutrality (or the perception thereof) is the death of a mediation.

A related problem with caucusing is that a party may impart secrets to the caucusing mediator in private. Whether or not your mediation agreement says that secrets and confidences will (or will not be) disclosed to the other party, the disclosure itself and the effect on the mediator can throw off a mediation. Even if you tell a mediation client at the outset of the mediation not to tell you anything that he/she cannot or will not tell the other party, things slip out, especially in a caucus. This is bound to change the mind-set of a mediator who tries to retain the secret. It becomes an elephant in the room, leaving no space for the mediation to proceed healthily.

Also, caucusing generally results in a series of exchanged offers rather than the processing and exchange of views (and change of perception and understanding) that are the essence of a successful mediation. If you tend to view mediation as transformative, this is the path you do not wish take.

I generally start a mediation (prior to the first meeting, when communications are generally by e-mail) by telling the clients that all communications (including e-mails) should be 3-way. I explain the reason why – that any “ex parte” communication can lead to feelings by a party that the mediator is no longer neutral and rather favors or advocates for one or the other party.

But I am not a card-carrying “anti-caucuser,” though I tend to make efforts to avoid it in mediation. But, not at all costs.

I, myself, have been involved with extreme versions of caucusing (some leading to a successful conclusion.) I have had mediations marked by an extreme need for caucusing that required completely abandoning face-to-face meetings and proceeding with a series of phone calls and emails with each of the parties separately. It was mediation, because I was functioning as a neutral third party, and it worked for these clients, who needed not to be in the same room or even the same office building. (I do not believe in throwing out the baby with the bathwater, and tend to be very practical). But I believe that, at least in family/divorce cases, caucusing has many drawbacks, and mediators should try to avoid it.

To me, the most important touchstone of a successful mediation is for each of the parties to feel strongly that the mediator is neutral and not biased towards or against them. Mediation clients can easily sniff out mediator bias and lack of neutrality. It seeps out of a mediator’s pores. Usually clients correctly and rightly perceive bias and lack of neutrality (when it exists), although in some cases, the lack of neutrality and existence of bias is a misconception on the part of the clients. Non-neutrality and bias (or the perception of it) immediately derails mediation, and the mediator almost never has another chance to remedy the blemish. The clients (or one of them) almost always abandon the process. If they continue with it they invariably feel “burned” at the end, whether or not the mediation results in agreement. This is not a good result for anyone and these clients will never recommend the mediation process to others.

A successful mediation is more than just a rushed-into agreement. It has lasting benefits for the parties. A good mediation makes it more likely that the parties can handle future challenges by themselves, without a neutral third party. That is why many of our mediation clients tell us that if they could have worked with us prior to their break-up, their marriage may have worked out. (That is how and why “marital mediation” or “mediation to stay married” often works successfully.)

There are differences in the viability of caucusing in different types of mediation. Caucusing may have varying uses in divorce mediations, marital mediations, and mediation in other types of civil disputes. The majority of mediated divorces deal with parties who have children. These are people who will be in relationship for the rest of their lives. Having the last act of their marriage (the mediated divorce) be partially in secret (in the caucus) seems to be not the best way to end a marriage and begin a lifetime of co-parenting. After all, mediation is about self-reliance and self-determination, and exchanges of a party’s “truths”. Face to face negotiations, assisted by the mediator, seem to best reflect this process.

In marital mediation, where a couple is trying to stay together and maintain their marriage, I generally avoid caucuses like the plague. (I am aware that other marital mediators have different views on this.) Working with a married couple is a very tender intervention by a mediator. For a couple to stay married, generally they need to have no secrets (at least not big ones). Caucuses can promote secrets. Also, in marital mediation, the marital mediator has a chance to model dispute resolution for the couple. Caucusing seems, to me, to make the process go awry because caucusing will not be available to the couple when they go home and deal with their own problems in “real” time. Also, without full, truthful transparency in the marital mediation process, problems in the marriage can linger, fester, and not be resolved in the marital mediation.

In civil mediation, caucusing is much more of an integral and helpful feature of the mediation process. Generally, the parties will have nothing or little to do with each other after the mediation. The burden that caucusing may pose to the future relationship of the parties is not an issue here. Often, the parties will come to the mediation with their lawyers. Anyone who has experienced a civil-matter (not divorce) mediation with the parties and their lawyers in the room, understands that in this situation a strong caucusing element with features of shuttle diplomacy by the mediator is generally very effective. It is not surprising that much of the academic literature dealing with caucusing deals with business, not divorce, mediations. (See, for example, Richard Calkins, “Caucus Mediation – Putting Conciliation Back into the Process”, Drake Law Review Vol. 54, 2006)

I would love to hear from other mediators (and mediation clients) regarding their views on caucusing in mediation and welcome comments to this article.

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Kenneth Onyema, Barrister,   Lagos	02/08/10
Quite interesting article. Caucusing from my experience in both family and commercial mediation is very crucial at the beginning of the process (pre-caucusing)when emotions are so charged, tensions so high, mutual suspicions so rife that reasoned and lasting communications between the parties seems impossible, if not impracticable.As confidence level rises and underlying issues unearthed, the need for further caucusing diminishes, indeed it becomes counterproductive and may rightly lead to suspicions of bias and influence. In family mediations it is best to table openly all the issues, including the dark secrets if any, for an enduring and pure resolution of the dispute - thus interactions must be 3-ways at all times until the end of the process, apart from the pre-caucus period. At Reconciliation Chambers, we lay great emphasis on this. KOO. Kenneth O. Onyema, Esq. Lawyer/Mediator, Principal Partner, Reconciliation Chambers, Lagos, Nigeria. Add New Comment

Jonathan Reitman,   Brunswick ME	jreitman@suscom-maine.net      01/13/10
caucusing
I appreciate that, for the reasons you articulate, particularly in family matters, caucusing may cause more harm than it's worth. But I'd like to suggest that any anti-caucusing "rule" or mediator preference is less important than evaluating the utility of caucusing in each particular case. So in this dialogue, let's think together about some guidelines and questions that will help us determine whether IN THIS CASE a caucus is useful: 1) Are the parties so hostile that any face to face communication is likely to be counter-productive and impede resolution? 2) Are there legitimate reasons (strategic or otherwise) that a party may choose to share a piece of information only with the mediator in caucus AND can the mediator "carry that secret" without distorting her role (I would argue yes). 3) What's wrong with caucuses promoting "exchange of offers" if that's what the parties want to resolve their dispute? 4) Can a caucus be a useful interim step in the process? I often find that once a certain amount of the underbrush has been cleared in caucus, it's useful to bring the parties back together to assess the progress that's been made. In these cases, caucusing has allowed some venting so that when they do return to joint session, the parties have a better understanding of one another's perspectives and can communicate more easily. 5) Does a caucus permit the mediator to develop a trusting relationship with each of the parties which is useful in helping them achieve their goals? Add New Comment

Paul McDonough,   New York NY	McDonoughLaw@GMail.com      01/12/10
Caucuse
I am an employment lawyer and mediator. Caucuses are central to the mediations I conduct. Most of the time, the parties are represented by counsel (I have also done some other commercial mediations.) The first caucus with the plaintiff is often long and this allows for catharsis; there is often a lot of emotion to be cleared and the person wants a day in court. Telling the story, in caucus, to a mediator often allows for that. Further, the mediations often turn from facilitative to evaluative, and it seems better to discuss the weaknesses of each sides case in private. Finally, I, and other employment mediators often speak to counsel to the parties prior to the meediation to make sure the people who can make the decision to settle are there. It may be a plaintiff's spouse needs to be there, or a division head for an employer, not the H.R. manager without the monetary authority or authority to approve payment of other benefits or turning a termination into a resignation. For my background, please see PaulSMcDonough.com Add New Comment

Marty ,   Federal Way WA	01/12/10
Excellent article that covers many aspects of using a caucus. With respect to "extreme caucusing" or a shuttle-style mediation, in my experience as a family and employment mediator, I have found that some parties communicate so poorly that a joint session is not constructive. A shuttle mediation allows the mediator to convey just the essence of the parties' interests, minus the counterproductive, inflammatory language that would emerge in a joint session. In these situations, it is often possible to reach a constructive settlement that benefits the parties -- and often their children. So although I prefer joint sessions and the opportunity to help the parties communicate more effectively, I believe there are circumstances when the best outcome emanates from a shuttle. Add New Comment

Jessica Carter,   Auckland, New Zealand	jessica.carter@dbh.govt.nz      01/12/10
Dear Laurie Thank you for a great article. You've tackled a tricky subject, and it's good to read a balanced view and some key issues for a further discussion. Power held by the mediator: power over process? Power over content? or both? Shuttle negotiations: is the mediator the message-carrier? or should the parties be exchanging this information and these proposals/offers in a joint session? Liked your comment about how some caucusing practices could interfere with the transparency of the mediation process - a great plug for joint sessions. JC Add New Comment

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