Recognizing this importance of the mediation "culture" and client and attorney expectations, decisions whether and when to caucus (including which party to meet with first, for how long, what the other participants are doing during the caucus, etc.) are decisions that should be made strategically, and not automatically. When the mediator chooses to caucus, it should be because, under all circumstances, the mediator has decided that to be the best possible approach for making progress.
Mediators vary dramatically on the issue of whether and when they caucus. Some mediators never caucus, believing that the parties are best off each fully participating in the process and noting that there is increased reliance on the mediator with caucusing. Mediators are also often concerned about possible suspicion that may develop within one or more parties when there are caucus sessions. When the mediator chooses to caucus, the mediator also needs to be aware of the possibility, if not likelihood, that parties will share their respective "secrets" with the mediator. While this may be helpful in understanding each party's true motivations, and thus support settlement efforts, secrets can be very challenging. For example, what is the mediator to do if he or she realizes that full financial disclosure is lacking, that misrepresentations have been made or with regard to important personal information.
Other strategic reasons for caucusing include creating an opportunity to work on unresolved anger issues or to allow consideration of a proposal outside of the presence of the other party. Caucus may be especially appropriate anytime the mediator's intervention runs the risk of creating an appearance of uncertainty, weakness or embarrassment in one or more parties. Most mediators will try to avoid having a party "lose face" in front of the other party(ies). Here is a more complete list of reasons mediators cite for deciding to caucus:
- create a productive pause in the process (relief from tension)
- engage in mediative reference point or "what if" process
- permit party movement without losing face
- offer negotiating advice
- assess alternatives to negotiated settlement
- test whether a party's proposals are realistic
- act as a sounding board
- work to develop settlement proposals
- as means of garnering information that will not otherwise come out
If the mediator chooses to caucus, it is critical that the mediator and the parties reach clear agreement as to the confidentiality of caucus meetings. This can be done in the Agreement to Mediate or less formally during the mediation itself. Better practice is to clarify agreements as to the degree of confidentiality of caucus sessions, and any exceptions to such confidentiality, in writing. Mediators and parties will typically take one of two approaches:
(1) everything said in the caucus is confidential between the mediator and the individual party except as the party expressly instructs the mediator he or she can share; or
(2) everything said in the caucus can be shared except as the party expressly instructs the mediator to not share.
In either case, the mediator is advised to continually clarify what can be shared and what can not be shared at the close of the caucus session. The mediator can be proactive and ask for permission to share information and proposals he or she believes will move the mediation forward.
The mediator is also advised to generally caucus with all parties, if he or she caucuses with any party. The purpose of this is to maintain balance. There may be situations where this is not necessary, such as where one party wants to specifically discuss a settlement option in private and the other party does not feel that they need to do that.
Another challenge is what to do with the non-caucusing party(ies) while the mediator is working in caucus. First of all, it is recommended that caucus sessions generally be limited in time, to between 10 and 30 minutes, to keep each party actively involved. The mediator may also ask one party to come early and the other to stay late. It is important that the non-caucusing party(ies) have a comfortable place to rest or work. It may be desirable to give them "homework" for their "waiting period" such as:
- list all things you believe we may be able to easily agree on;
- come up with at least two settlement arrangements that would work for you; and
- what would you be willing to give the other to get what you want -- and what would you need to receive from the other to agree to what they want?
Parties can also be asked to describe the following:
- the strengths of their case;
- the weaknesses of their case;
- the strengths of the other's case;
- the weaknesses of the other's case;
- how they think an impartial judge or jury would decide the case;
- what is the best litigated result they might reasonably expect;
- what is the worst litigated result they might reasonably expect; and
- how the other party would respond to these same questions.
In all cases, the mediator is attempting to constructively utilize what might otherwise be "down time" for the non-caucusing party while also attempting to create some flexibility through the inducement of new perspectives or through the creation of doubt and dissonance. In all caucus situations, there is a dramatically increased reliance on the mediator's management of the mediation process.