Tools and flexibility are vital components of any effective mediator’s repertoire. One tool that comes to mind that is often misunderstood and misused is the caucus (private meeting) segment of mediation. When thinking about the mediation wheel or various components of a mediation session you may notice the caucus segment is outside the wheel because it can fit anywhere within the mediation session and is a flexible process that may or may not be used during a mediation session.
I often share with peers a simple phrase to help with all aspects of mediation to include the caucus sessions and that would be to: “seek first to understand …” the parties and mediator concerns and dynamics before jumping into the various stages of mediation.
You may ask yourself, when is the right time to “cut” the joint discussion and move into caucus? Well the answer is it depends… There is no definitive timeline or checklist for when to caucus or not because each mediation session is different based on issues involved, participants, actions, attitudes, agendas, behaviors, etc.… I have gone through many sessions without ever caucusing and conversely I recall many sessions where I had to caucus before the mediation ever started and multiple times in between. There are many strategic indicators to consider for a caucus but we will focus on just a few for now.
• When parties engage in counterproductive discourse
• When parties have difficulty speaking in front of each other
• When parties ask to go to caucus
• When the mediator observes the quality of the process is being negatively affected
There are also some tactical considerations to ensure the caucus is used effectively and does not create doubt or hinder the process in any way.
Tactical Caucus Considerations
• Discuss caucus process during your mediator opening statement
• Introduce the need for caucus without blame
• Keep the parties’ focused on interests
• Coach and offer constructive feedback (only in caucus session not during joint session) so you don’t cause any party to lose face or be discredited
• Assist party in understanding how they may be perceived
• May suggest ways to communicate with other party to move process forward in positive direction
Subsequent Caucus Considerations
• How can this serve the parties’ interests?
• How much work has been done by the parties toward resolution?
• What damage will be done to the session and mediation process if pressed further?
• What benefit can be derived from continuing?
• How do you test for the parties’ willingness to continue, or not continue?
As with any effective tool there are often pitfalls that may hinder the usefulness of that process. Again there are many but these are some common pitfalls to think about as well as some practical tips for caucus sessions.
Common Pitfalls of Caucus
• Moving in too soon! (You must allow parties to fully bring out their interests and solutions)
• Not moving in soon enough
• “Investigating” for mediator’s curiosity
• Not staying focused and alert for “sounds” of resolution and summarizing any positive movement
• Rushing parties to options and resolution
• Not preparing parties for subsequent joint sessions
Practical Tips for Caucus
• Develop an understanding of the true nature of the dispute and listen for emotional “hot buttons”
• Gain an appreciation for the underlying reasons for the dispute and provide time for the parties to address them
• Create the atmosphere for and foster the belief in the parties’ ability to bring about a satisfactory conclusion
• Facilitate the parties’ movement toward their solutions by recapping any agreed upon terms
• Encourage the parties to make or accept offers of resolution between themselves
Here are a few final thoughts to share when considering whether you should caucus or not utilize a caucus session.
• In your mind be thinking of strategies for success and assist parties to feel they are part of the resolution options
• Consider the strategic and tactical approaches to caucusing
• Always think of ways to assist with breaking down barriers and building bridges and reality test effectively during a caucus session to ensure the participant considers all factors and options
• Be committed to the quality of the process
• My # 1 cardinal rule during any stage of mediation is to remember to do no harm to the process or your mediator neutrality!