Comments: To Caucus Or Not To Caucus – That Is The Question

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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.

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?

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

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.

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