Recently the mediation caucus – meetings in private between the mediator and one side to a dispute – has come in for some harsh criticism. Dismissed as “shuttle diplomacy” that keeps parties in the dark about each other’s interests and places full control over the flow of information in the hands of the mediator, the caucus has been derided as an inadequate tool for the facilitative practitioner.
The problem with the caucus – a practice commonly associated with litigated or commercial cases in which the mediator shuttles back and forth between separate rooms, conveying offers and counteroffers – is that it thwarts one of the important benefits mediation confers – the ability for those most intimately familiar with the details and history of a dispute to be directly involved in its resolution. The caucus can also shift the role of the mediator from neutral to advocate or agent for the parties. There is also the risk that the mediator – who is only human after all – may inaccurately convey information. Direct communication between the parties, from issue identification to problem-solving, can be the most productive and efficient way to reach resolution.
Yet despite these admitted shortcomings, it’s time to restore the caucus to its rightful place as a time-honored tool used “to facilitate communication between parties, to assist in identifying issues, and to promote a mutually acceptable settlement”, as lawyer and mediator Stuart M. Israel has written (PDF).
In my own experience, the caucus offers much to redeem itself and can be used, for example, to
This last one is an important consideration for those who mediate family cases. Once, during a caucus in a divorce mediation, the wife revealed to a colleague of mine that the husband had threatened to kill her. Although this colleague conscientiously and thoroughly screens for domestic violence, these kind of unanticipated revelations can emerge despite careful intake. At that point the mediation ceased to be a mediation, and my colleague’s efforts focused on getting the woman to safety. Without this private meeting with the client, this mediation could have produced tragic results.
Like any tool, the caucus can be misused or do harm, but that is no reason to discard it. Like any tool, in the hands of the skilled craftsperson, it can also produce impressive results. Let’s restore it to its rightful place in the mediator’s toolbox.
The Mediator Ethics Advisory Committee of The Florida Supreme Court [MEAC] Opinions 2011-017 and 2014-004 mandate an unqualified ethical standard of mediator conduct that is unsound and inconsistent with the...By Patrick Mastronardo
This article originally appeared in the ADR Supplement of the Philadelphia Legal Intelligencer. Reprinted with permission from the January 19, 2016 edition of the Legal Intelligencer © 2016 ALM Media...By Stephanie Klein