Deep-seated interpersonal conflict requires an enormous amount of skill to mediate, even when the best of present-day theory is put into practice by trained and skilled mediators. Yet others who may have little mediation training, such as facilitators, may at times find themselves in the role of mediator.
Despite years of experience as an admired and skillful facilitator, a colleague confessed that mediation required specialized skills. He described a recent intervention as a third-party neutral, one where he felt thrown into a lion’s den. The stakeholders became involved in an ugly escalation right in front of him. As a mediator he felt impotent to help, and was even threatened by one irate stakeholder.
There are a number of subtle differences between what facilitators and mediators do. Although they both draw from a subset of common tools, there are important distinctions. Generally speaking, facilitators tend to help groups through the process of problem solving and creative decision making. Mediators often deal with stakeholders who may be more openly antagonistic toward each other.
Facilitators, in many cases, work with situations where people may not know the way, but are excited about finding a common direction. Mediators, in contrast, often work with those who have lost faith in the other stakeholder, as well as any hope of resolving the challenges in a mutually positive or amicable fashion. Having made such broad generalizations, it is important to note that individual mediators and facilitators vary enormously both in philosophy and approach.
There are times when interpersonal conflict may force a facilitator to concentrate on individual or group antagonisms. At times like this, the facilitator may benefit from additional mediation skills.
The focus of this paper is on the contributions of caucusing as a mediation tool, and more specifically, the use of pre-caucusing. In caucusing, the third-party neutral meets separately with each stakeholder, in the absence of the other contending party. In pre-caucusing, these separate meetings take place before the mediator ever brings the stakeholders into a joint session (Billikopf 1994; Billikopf 2000).
While countless factors are involved in successful mediation, some are so compelling that they may be called pillars of mediation. Pre-caucusing may well be such a pillar.
With notable exceptions, caucusing has received a somewhat uneven and often shallow treatment in the literature. Little is said explicitly about pre-caucusing. Certain value assumptions about mediation further complicate some of the controversy surrounding the topic. One of the most important of these values involves mediator choice between a transformative (Bush & Folger 1994) and the more traditional directive mediation.
The directive approach tends to focus on finding an acceptable agreement—one that may involve settling or compromising—between the contending parties. It is sometimes called directive because of the large amount of power and responsibility placed on the mediator. Some mediators may come close to acting as arbitrators, imposing a solution on the participants. Of course, mediators do not normally start out thinking that they will impose a solution. As situations become more difficult and emotional, however, it is increasingly likely that directive tactics will be utilized (Bush and Folger 1994; Folger, Marshall, & Stutman 1997; Lewicki et al., 1994).
- allows stakeholders to retain maximum control over the process
- creates an atmosphere where parties can begin to connect interpersonally (i.e., provide mutual recognition or support)
- helps parties become better negotiators and reduce dependence on neutrals
- seeks solutions that are based on a careful understanding of the problem, rather than rushing into agreements that may be short-lived.
A study on self-esteem found that people prefer conflict management situations in which they have added control over the results, even when such control may mean making greater concessions (Swann 1996). My own preference towards transformative mediation affects how I see and utilize caucusing.
We shall first review what is said about pre-caucusing in the literature. The positive and negative attributions often associated with caucusing, and particularly, the special contribution played by pre-caucusing, are mentioned next. Examples of pre-caucusing are drawn from my involvement as a researcher and mediation practitioner in organizational settings.
Pre-caucusing in the Literature
Little is said in the literature about either pre-caucusing or the timing of caucusing in general. For instance, Moore suggests, “Mediators should take care not to schedule caucuses prematurely, when parties are still capable of working productively in joint session, nor too late, after unproductive hostile exchanges or actions have hardened positions” (1996, p. 320).
Bush and Folger are more explicit about the benefits of early caucusing: “Exploring delicate relational issues and laying further groundwork for recognition is sometimes easier in caucus, especially in the early stages of the process. Parties often find it difficult at first to give recognition directly to the other party, because it is difficult to give recognition to another person when feeling vulnerable oneself” (1994, p. 153). Having said that, however, they warn that breaking into caucus too early may interrupt the “transformative momentum” or positive conversation flow between stakeholders that may involve positive acts of mutual recognition (Bush & Folger 1994, p. 271).
There is one veiled reference to pre-caucusing, mentioned almost as an aside by Folger, Marshall, and Stutman. In a sidebar case, a mediator was using computer technology as an aid to conflict resolution. The mediator is reported to have met with the stakeholders “separately prior to the session to help them clarify their needs and positions” (1997, p. 285).
Volkema comes close to suggesting a pre-caucus: “The first contact between the mediator and the parties provides the first opportunity to establish public images. If this contact is between the mediator and one other person, only two identities need to be negotiated, although groundwork for others can be laid at the same time” (1988, p. 8).
Winslade and Monk (2000) are clear proponents of the pre-caucus, especially in cases involving entrenched disputes, although they studiously avoid the word caucus, given its negative associations:
"One of the first steps we prefer to take in a mediation is to meet with each of the parties separately …. In our experience, it is in these separate meetings that a lot of the major work of the mediator is done. … the separate meetings are a venue for significant developments in the mediation as a whole, not an optional adjunct to the process, to be used only when things are getting sticky. In our approach, they are central to what gets achieved (2000, p. 137)."
Despite Winslade and Monk’s use of the pre-caucus, I found they failed to take advantage of all of the pre-caucus’s transformative possibilities. In the joint session stakeholders tend to address the mediator rather than each other. In fairness to Winslade and Monk, this happens even in the approach used by Bush and Folger (1994).
Positive Contributions of Caucusing
Positive attributes usually associated with caucusing include:
- deciding whether to bring the parties together into a joint session (Moore 1987; Moore 1996)
- giving the opportunity to stakeholders to vent (Blades 1984; Emery & Jackson 1989; Hobbs 1999; Hohlt 1996; Moore 1987; Moore 1996; Pruitt et al. 1989; Welton, Pruitt, & McGillicuddy 1988)
- helping each party feel understood by the mediator (Emery & Jackson 1989; Hobbs 1999; Hohlt 1996; Moore 1987; Moore 1996; Pruitt et al. 1989; Volkema 1988; Welton, Pruitt, & McGillicuddy 1988)
- exploring positions and needs (Blades 1984; Castrey & Castrey 1987; Emery & Jackson 1989; Hobbs 1999; Hohlt 1996; Moore 1987; Moore 1996; Pruitt et al. 1989; Volkema 1988; Welton, Pruitt, & McGillicuddy 1988)
- reminding parties of the benefits of mediation (Moore 1987; Moore 1996; Volkema 1988)
- coaching stakeholders on effective communication and negotiation techniques (Hobbs 1999; Moore 1987; Moore 1996; Volkema 1988)
- appealing to stakeholders’ higher principles (Blades, 1984; Hobbs 1999; Hohlt 1996; Moore 1987; Moore 1996; Pruitt et al. 1989; Volkema 1988; Welton, Pruitt, & McGillicuddy 1988; Winslade & Monk 2000).
Each of the next several sections (1) presents a key decision or outcome of mediation, then (2) underscores the contributions of caucusing followed by (3) the additional benefits of pre-caucusing.
Deciding to Bring Parties Together
The ideal is to bring the stakeholders together so they can make a joint decision and retain maximum control over the situation. An important outcome of effective mediation is to enable parties to handle future challenges without a mediator.
While the results of mediation can be markedly superior to those obtained through other third-party interventions (such as arbitration), this is not necessarily so with substandard mediation (Castrey & Castrey 1987). When things go wrong in mediation, stakeholders may take advantage of the sense of safety they feel in order to escalate the contention to even higher levels than before. It is possible that the mediator can do more harm than good by bringing the parties together.
Contributions of caucusing
Moore suggests that a mediator may use caucusing to deal with relationship problems, and that at times a neutral third party may want to “discourage or prevent the parties from returning to joint session ... when extremely strong emotions [might] be a major stumbling block to further negotiations” (1987, p. 88).
Further contributions of pre-caucusing
A central aim of the pre-caucus is for the mediator to assess the potential benefits and harm of bringing stakeholders together, before any damage is done. When contention is allowed to come into the mediation session, the opportunity for stakeholders to start with a clean slate is compromised. Emotional escalation, as Moore (1987) suggests, may also have a negative effect on reaching agreement.
In one of my early efforts as a mediator, a manager not only refused to look at his assistant in the joint session, but turned his chair so as to present his back to her. After this experience I developed a litmus test to better help me gauge the likelihood that a joint session would be successful: asking a stakeholder for what he or she values in the other (Billikopf 2000). This question is so telling because people involved in deep-seated conflict may have trouble finding anything positive to say about another (Bush & Folger 1994). This is not a question to ask at the outset, as stakeholders may be in too much pain to see very clearly. Nor should the mediator take the first negative expression as final. (For additional tests see Lewicki, et al. 1994, p. 360-361.)
In one difficult case, a top manager could not make a single positive remark about a middle manager who worked for him, despite the positive things that had been said about him. I shared with the top manager my experience that there was little likelihood of mediation success where an individual could find nothing positive to say about another, and suggested a short break. When we resumed our conversation, the recalcitrant manager was waiting for me with a list of sincere, positive feelings about the other stakeholder.
Opportunity to Vent
Two couples sat on either side of the table, glaring hostilely at each other. At the head of the table, a schoolteacher in her thirties was explaining the service. “First you, Mr. and Mrs. A, will have a chance to tell your side of the story and Mr. and Mrs. Z will listen quietly. Then you, Mr. and Mrs. Z, will have the same opportunity. After that we will discuss the situation and try to find a way to resolve it ... . While each side was telling its story, there were outbursts from the other of “that’s not true” or “wait a minute,” which the mediator strove to contain. (Pruitt et al. 1989, p. 202)
Mediators often struggle unsuccessfully to maintain control over conflict escalation. Early joint session phases where stakeholders share their stories, come up with ground rules, or begin to interact, frequently lead to unconstructive exchanges. “After each parent has voiced concerns, the two parents are encouraged to discuss the issues freely. In the majority of cases, an argument ensues,” say Emery & Jackson, who discuss child custody disputes. “The fight is almost always unproductive ...” (1989, p. 6).
Kenneth Kressel explains that it is a “common theme in the mediation cannon” (p. 25) to let each party tell their side of the story in front of the other. He then shares the destructive effect of this approach: “Mrs. Smith would accept my invitation [to tell her side of the story] with relish, explaining that they were here because Mr. Smith was a worthless lout who cared nothing for his children or common decency and had been vilifying and humiliating her for years. For all she knew, he might also be an alcoholic and child abuser. His cross-dressing was a matter of record. She was in mediation by order of the court and was certainly willing to do her best to encourage Mr. Smith to ‘finally be a father’ but was, shall we say, skeptical. Whatever the tonic benefits of this outburst for Mrs. Smith, for Mr. Smith and myself the results were clearly unhappy: he would be provoked into an apoplectic rebuttal and I into a dismal contemplation of other lines of work. Yes, I exaggerate. But only a little” (1994, p. 26).
Some mediators feel that such loss of control is unavoidable, part of the process, or even necessary (Emery & Jackson 1989, Rothman 1997). I contend, however, that there is a better way; that stakeholders have already experienced what does not work, and remember it well. It is hardly necessary for them to re-experience it now in front of the mediator. Most third-party neutrals would probably welcome an approach where such dysfunctional escalations were either greatly reduced or completely eliminated.
Some have suggested strategies for reducing such futile outbursts, including telling one party to remain silent or focus on listening (Hobbs 1999) while the other speaks. To make the point, the listening party may be given a notepad and asked to take notes (Emery & Jackson 1989). It has also been suggested that joint sessions be held in a public place to help stakeholders tone down their emotions (Folger, Marshall, & Stutman 1997). While the note-taking suggestion has some merits, in this context such artifacts may delay contentious outbursts rather than prevent them.
Contributions of caucusing
Stakeholders may have some very poignant and deeply antagonistic feelings towards each other. When these can be vented in front of the mediator, the stakeholder often has less of a need to vent in a destructive manner in front of the opposing stakeholder. Defensiveness is reduced and creativity increased as the mediator protects stakeholders from further mutual abuse.
There is little disagreement on this point: while involved in caucusing stakeholders are less hostile than in joint sessions (Welton, Pruitt, & McGillicuddy 1988). When conflict escalates into contentiousness, as in these episodes, the mediator not only permits stakeholders to lose face, but just as importantly, she or he loses both control (Butler 1994) and face (Volkema 1988) in front of the stakeholders.
Further contributions of pre-caucusing
When dealing with acquaintances or strangers, individuals often go out of their way to make an effort to project their best possible behavior. This is especially true in what could be called a ”courting period.” This honeymoon period may last years, when stakeholders view their relationship as fair and equitable. When the rules of proper interpersonal exchange are violated (Brown, 1986) and someone feels taken advantage of, the situation can change quickly.
Similarly, in a stakeholder’s relationship with a mediator—assuming the mediator is a stranger and/or has the respect of the stakeholders—individuals often try extra hard to be on their best behavior (Folger, Marshall, & Stutman 1997), lest the mediator think that they are culpable. Stakeholders are more likely to want to continue to make a good impression on the mediator after they have established themselves as reasonable people in the pre-caucus. Volkema suggests that “it is not unlikely that the parties will have established one image with each other and another image with the mediator” (1988, p. 11).
People also attempt to be consistent: “Consistency gives actors a desirable degree of predictability and trustworthiness, and it generates liking and respect” (Schlenker 1980, p. 232). Stakeholders are likely to feel a greater need to be seen as consistently reasonable by a mediator who has had sufficient time to meet with them individually. Effective listening is a very powerful tool, and people tend to respect those mediators who can listen with care and empathy.
Once the parties have exchanged insults in front of a third-party neutral in traditional mediation, on the other hand, much of the damage has been done. Stakeholders feel less motivated to show their best after exposing their worst behavior.
It is not that stakeholders pretend to be someone they are not. Because stakeholders meeting with the mediator in the pre-caucus know they will be meeting with the other party in a joint session, it is my experience that they are likely to share their own shortcomings, rather than wait for the other party to bring these out. It is this new facework (allowing another to save face) between stakeholders that the mediator wants to encourage in order to give parties an opportunity for a fresh start that is not based on blame.
Helping Each Party Feel Understood by the Mediator
It is difficult to expect stakeholders who have been involved in deep-seated conflict to put aside their own needs and listen to and focus on the needs of the other party (Bush & Folger, 1994). The natural tendency is for stakeholders to want to express their own perspectives first. The more deep-seated and emotional the conflict, the greater this tendency.
At times, tension in deep-seated interpersonal conflict situations can reach almost unbearable levels. In mediating such conflicts within organizations, it is common for stakeholders to strongly contemplate withdrawal from the enterprise. Psychological separation from the other stakeholder and possibly from the organization has already taken place. For instance, in child custody mediation, parties have already separated physically and psychologically from each other, yet need to work together for the benefit of the children involved.
Contributions of caucusing
Because stakeholders have the opportunity to meet separately with the mediator, each gets the opportunity to explain his or her perspective first, before having to attend to the other participant. When the stakeholder feels understood, an enormous emotional burden is lifted, thus making him or her more receptive to listen to others (Covey 1989). It is true that stakeholders have a special need to be understood by the other party in the contention, but being understood by the mediator contributes much. Often, it is a necessary step in terms of a stakeholder gaining enough confidence to proceed further.
Some individuals tend to be more silent than others. Caucusing increases the chances that an individual will talk (Hohlt 1996) and express his or her feelings. It is hardly possible for the mediator to help individuals who refuse to speak about “where it hurts.” Mediators have the opportunity to show empathy in a caucus situation without arousing jealousies in other party.
Further contributions of pre-caucusing
It is at the start of mediation that stakeholders are perhaps most apprehensive as to what mediation may bring. Parties often come to the table with every defensive mechanism armed and ready to deploy (such as sulking silence, angry outbursts, combative body language). They may have trouble looking at the mediator, let alone the other party.
When a pre-caucus is used and the other party is not present, this stakeholder frustration and despair is re-directed in more positive ways. To have an empathic ear to listen to a stakeholder in such a non-judgmental way is powerful medicine indeed. I have seen people who were supposed to be “silent types” open up and talk freely. Men and women have wept openly as they released tension. Such emotional releases are not available to stakeholders in more traditional mediation.
The Exploration of Needs and Benefits of Mediation
The mediator attempts to understand individual items under dispute, as well as the general perspectives of stakeholders, and helps stakeholders keep alive the benefits of mediation (in contrast to other alternatives such as arbitration).
Contributions of caucusing
An important benefit of caucusing is being able to explore beyond positional bargaining, into stakeholder interests and needs (Fisher, Ury, & Patton 1991). Stakeholders can also be reminded that mediation confers tangible benefits over interventions where they have less control. This is more likely to happen when individuals feel less vulnerable and defensive, and are more willing to think aloud without feeling forced into making concessions. A mediator can increase her or his understanding of the situation through such exploration, but more important yet, the self-awareness of each stakeholder increases. For instance, it may become clear that a stakeholder desires an apology, rather than some other remedy.
Further contributions of pre-caucusing
When disputants enter the joint session with the benefit of a pre-caucus, the mediator can often take a less visible role. Each stakeholder comes to the joint session possessing enhanced clarity about the issues and self-confidence.
In one situation, after I listened to stakeholders during a pre-caucus, they were able to go on and solve the problem on their own. Bad feelings had developed between them concerning how each introduced the other to visitors and the media. Not only did they solve this problem on their own; they also dealt with related underlying issues, and even went on to discuss opportunities for future career growth and cooperation (Billikopf 2000).
As a neutral I sometimes do little more than introduce topics brought up during the pre-caucus. Allowing the stakeholders to solve an easier problem early on may give them the needed boost to deal with more challenging issues later (Blades 1984; Emery & Jackson 1989). Furthermore, a mediator who understands the issues involved can make sure that significant issues are not ignored. Despite previous antagonisms, communication between stakeholders during joint sessions is sometimes so fast paced that I have to scramble to understand and note their agreements. At times like these I feel like an unneeded observer. Setting up a situation where stakeholders address each other with little mediator interference takes transformative mediation to the next level. Although not all cases achieve this ultimate success, mediators can count on better communication flow and reduced contentiousness between stakeholders.
Educate Stakeholders on Effective Negotiation Skills
One measure of mediation success is when it equips stakeholders to handle future challenges on their own. While this may not necessarily happen after a single experience with mediation, the stakeholders can take with them increased self-awareness and conflict management skills.
Stakeholders may be shown how they can present a perspective using neutral or non-provocative language (Hobbs 1999) and without causing the other to lose face. An important part of conflict management is helping stakeholders recognize the need for the other party to build and save face (Ting-Toomey 1999; Volkema 1988; Blades 1984; Moore 96). In the absence of these skills, people are likely to revert to a more dysfunctional and emotional approach to communication. Participants may also develop a better understanding of the nature of conflict — learning how to divide big issues into smaller ones and what constitutes a proper apology, for instance. Both stakeholders gain negotiation power as they improve their ability to communicate in effective ways.
Contributions of caucusing
Mediators have the opportunity to privately discuss participant behaviors that are working, as well as those that are not. This avoids the appearance of favoritism associated with public compliments, as well as the loss of face connected with open criticism.
Further contributions of pre-caucusing
It is hard to expect the stakeholders to have a positive mutual conversation when they lack even the most rudimentary notion of how their communication strategies affect the other stakeholders. Those who grasp new insights into the negotiation process early on are more likely to enter the joint session feeling confident and prepared, with some control over the results.
Among the potential positive outcomes of transformative mediation is giving parties the opportunity to apologize and to accept an apology (Bush & Folger 1994). One stakeholder had a history of vitriolic temper outbreaks when I first met with him. His anger often manifested in shouting and profanity. During the pre-caucus, it became increasingly clear that this stakeholder felt no regret about his temper tantrums. He was quick to both minimize the extent of his anger, and to justify his bullying behavior. Had he defended such behavior in a joint session, his credibility would have been greatly damaged. Through a series of role-plays and conversations during the pre-caucus, he came to understand the importance of offering an apology for his profanity and anger. Furthermore, he suggested that the topic be brought up early on in the joint session so he could have a chance to apologize. During the first role-play his words had sounded shallow at best. The actual apology offered during the joint session was moving and sincere.
Regular caucusing has one advantage over pre-caucusing here. While the mediator can observe and coach a stakeholder during a pre-caucus, some dysfunctional communication approaches only manifest themselves during the joint session. This is not a fatal flaw of pre-caucusing, because a regular caucus can be utilized later to deal with such issues.
Much of what has been said here also applies to the idea of appealing to a stakeholder’s higher principles. Many transformative opportunities that could otherwise be lost present themselves during the pre-caucus. For instance, an owner-operator said something touchingly positive about one of his managers during the pre-caucus. I suggested that it would be magnificent if he could share that thought with the other stakeholder during the joint session. The owner explained that he would never do so. I challenged him to reconsider, but left the ultimate decision up to him. The individual chose to share the affirming comment during the joint session, taking ownership for that decision, thus making it his own.
Negative Connotations of Caucusing
A number of challenges are associated with caucusing, including:
- lack of stakeholder truthfulness (Pruitt et al. 1989; Volkema 1988; Welton, Pruitt, & McGillicuddy 1988)
- mediator bias (Blades 1984; Engram and Markowitz 1985; Moore 1987; Moore 1996; Pruitt et al. 1989; Volkema 1988; Welton, Pruitt, & McGillicuddy 1988)
- mediator control or abuse of power (Blades 1984; Folger, Marshall, & Stutman 1997; Keltner 1965; Moore 1987; Moore 1996; Pruitt et al. 1989; Volkema 1988)
- reduced likelihood that disputants will know how to handle future challenges (Pruitt et al. 1989)
- mediator violation of confidentiality (Blades 1984; Moore 1987; Moore 1996)
- interruption of positive movement (Moore 1996; Welton 1988)
- free time for the other stakeholder to use in an effort to build his or her own case (Welton 1988).
Attacks on Directive Mediation
As we shall see, most criticisms associated with caucusing are really attacks on directive mediation, rather than on caucusing itself. Where caucusing is instead used to increase stakeholder control through transformative mediation, most of these objections melt away.
As positive as mediator empathy toward a stakeholder may be, some fear this may lead to stakeholder untruthfulness. They reason that the absence of the other party during the caucus leaves the stakeholder free to exaggerate. Others argue that caucusing may lead to deals between the neutral party and one of the stakeholders. “Disputants often fear that clandestine deals or coalitions [may take place] between the other party and the mediator” (Moore 1996, p. 200).
Yet others suggest that caucusing simply gives the mediator too much control, lends itself to abuse of mediator power, and does little to equip stakeholders for future conflict in life. Instead, they argue, stakeholders may become more dependent on mediation. “Caucuses ... are explicit attempts to narrow issues, to push for compromise, and to synthesize arguments and positions.” (Folger, Marshall, and Stutman 1997, p. 262). We even read, “caucuses provide mediators with the greatest opportunity to manipulate parties into agreement” (Moore 1996, p. 325). Volkema warns that mediators with a vested interest may promote one outcome over another (1988). The assumption, in all these cases, is that agreement is reached during caucusing.
There is nothing inherent in caucusing itself, however, that leads to these difficulties. Quite the contrary, Engram and Markowitz suggest that “... the judicious use of caucusing in ... mediation can even enhance the perception of neutrality and will result in increased trust in the process of mediation” (1985, p. 25). Likewise, where transformative mediation is used, caucusing may be seen as a tool to help stakeholders become better negotiators (Bush and Folger 1994).
In transformative mediation where it is the stakeholders who solve their own disputes, there is little to be gained by attempts to influence the mediator. Stakeholders need not be concerned that the mediator will make a secret agreement with the other stakeholders. Caucusing is used to teach negotiation skills to stakeholders, rather than to circumvent stakeholder empowerment.
Violation of Confidentiality
Another negative associated with caucusing is the potential for sharing confidential information obtained from one stakeholder, either purposely or through a slip. Certainly, mediators need to be careful not to divulge confidential information. Yet it should be clear that the purpose of caucusing is to help stakeholders better understand their own needs and prepare to communicate these to the other party in the joint session—not to talk about issues stakeholders want to keep secret from the other participant. True, some subjects are originally brought up in a somewhat raw manner. These are translated into more effective messages that tend to reduce defensiveness. For instance, if a stakeholder feels the other is inconsiderate or selfish, the mediator helps the stakeholder better understand critical incidents that may have led to this evaluation. During the joint session, the incidents and behaviors are discussed without the labels.
As a mediator, I note all the issues that are important to stakeholders during the pre-caucus, and give them a chance to expose these during the joint session: “A, Could you share with B the story you told me about X.” Opportunities are balanced for both stakeholders to bring up issues that are then jointly discussed.
Sometimes ethical issues require disclosure, such as when a spouse is hiding an asset from the other during a divorce settlement. In those situations, Blades (1984) suggests that the mediator make it clear to the pertinent stakeholder that the neutral’s continued involvement in the mediation depends on the stakeholder disclosing this information to the other party. Standards have been suggested for issues with and limits to confidentiality (Milne 1985; Moore 1987). Caucusing does not cause an inherently unethical situation to develop, however. It simply affords the mediator an opportunity to help correct an unfair situation. “Much of the controversy surrounding the issue of caucusing ... stems from differences in training or orientation rather than from a real debate about ethics” (Engram and Markowitz 1985, pp. 24-25).
Interruption of Positive Movement
Caucusing may be called at any time, by stakeholders or by the mediator. Stakeholders may even wish to caucus within their own team, without the mediator. Alternatively, the mediator may need time alone and call a “mediator caucus” (Castrey and Castrey 1987, p. 15). Any type of caucusing may interrupt the positive flow of the conversation. The great advantage of pre-caucusing is that it does not interrupt the positive flow of communication that may be established during the joint session. Furthermore, pre-caucusing probably reduces interruptions after the joint meeting has begun.
Free Time to Solidify Stance
The concern that caucusing permits one party time to further solidify her or his own stance while the other is engaged in caucusing, is simply a non-issue. In transformative mediation one of the roles of the mediator is to help stakeholders consider potential pitfalls. Mediators help stakeholders truly understand the problem and thus avoid quick unworkable solutions.
Contention creates a sense of psychological distance between people, turning even minute differences into ones that seem insurmountable. A tool of particular value is the caucus, where the mediator meets separately with stakeholders. The literature has shed light into both the positive and negative contributions of caucusing. Positive aspects of caucusing include giving parties an opportunity to tell their story and be heard, explore needs, and vent privately. Mediators may also take advantage of caucusing to coach parties and help them understand the tools that will help them become better negotiators in the future.
Interestingly, most of the criticisms associated with caucusing derive from a directive mediation approach. When caucusing is used within a transformative framework, most of these potential negatives disappear. In transformative mediation the stakeholders remain the primary actors. Not only do the contending parties retain control over the outcome, they are also equipped with many of the tools they will need to solve future problems: “A skillful transformative mediator can use caucuses in a manner that not only avoids the problem-solving pitfalls [found in the directive approach] but actually builds transformative momentum over the course of a session” (Bush and Folger, 1994, p. 270).
Although in the literature we find some allusions to the benefits of the pr-caucus, very little is said explicitly about it. When pre-caucusing is used with a transformative approach to mediation, the benefits of caucusing are multiplied, and the potential negatives are further reduced.
The main reason why pre-caucusing is effective is that the mediator affords each stakeholder the opportunity to be heard when he or she needs it the most. A conflict situation that calls for mediation, almost by definition, is a difficult one. Stakeholders are most often focused internally and have little capacity to listen to someone else at the beginning of mediation. This internal focus tends to extinguish creativity by increasing negative emotion and defensiveness. A stakeholder who feels heard in the pre-caucus is better able to listen to the other stakeholder and to connect in a more positive way. The groundwork laid out during the pre-caucus allows stakeholders to address each other with little mediator interference.
Mediation has the potential to do much good. Poorly carried out mediation, where contenders feel they can exchange insults in a psychologically safer environment, can do more harm than other forms of neutral-party interventions. The pre-caucus affords mediators the opportunity to make difficult decisions as to whether to bring contenders into a joint session.
Sometimes the most productive approaches are the simplest, and this is certainly true with the pre-caucus. Caucusing as a mediation tool has been partially misunderstood and certainly has not been used to its potential.
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