Forward, backward, inward, outward,
Come and join the chase!
Nothing could be drier than a jolly caucus-race.
from Alice in Wonderland
In her January 10, 2010 article, Laurie Israel does a good job of defining caucuses in general, the use of caucuses for specific types of mediation, the variety of forms caucusing might take, and the many disadvantages of using caucuses in mediation. Her emphasis on the disadvantages of caucuses excludes many advantages. As divorce mediation specialists, my partner and I are convinced of the many advantages of using caucuses to help couples achieve a successful divorce. In fact, we require it for our process.
For almost a decade, we have offered gender-balanced team mediation for divorcing couples. My partner is a licensed attorney and CPA. I was trained as a therapist, have a doctorate in counseling psychology, and was a college professor of interpersonal communication for over 12 years. I would like readers of this article to go away thinking more positively of the use of caucuses rather than to be dissuaded from using them as Ms. Israel advocates. My comments apply specifically to divorce mediation, based on the successful outcomes of hundreds of our divorcing clients. However, many of these advantages are applicable to other forms of mediation as well.
As part of our process, both of us meet with each spouse for 45 minutes to an hour, usually in our second session. These caucuses are vital to our success and important for our clients. Many of our prospective clients, during their initial phone inquiry, sound relieved when they learn that they will have the opportunity to speak with the mediators privately.
During our first session, we inform them of the purpose of these separate sessions or “caucuses” and of what they might expect in the caucus. We acknowledge that they have individual concerns that might be in conflict and that by meeting separately, we get clarity from each as to what their needs and expectations are. We further inform them that we will be able to get tips from them as to how they work best in information-processing and decision-making. We tell them that we will be better mediators and more efficient by having these caucuses because we will be able to build on their prior agreements and avoid polarizing them. We utilize the psychological resources of the self-fulfilling prophecy by coaching them in advance as to the positive benefits of having a caucus. Rather than losing their perception of us as neutral mediators, our clients enter the caucus with positive expectations, knowing that each of them will have the same opportunity.
It seems to me that Ms. Israel also sets up a self-fulfilling prophecy in her approach. She states, “I generally start a mediation (prior to the first meeting, when communications are generally by e-mail) by telling the clients that all communications (including e-mails) should be 3-way. I explain the reason why – that any ‘ex parte’ communication can lead to feelings by a party that the mediator is no longer neutral and rather favors or advocates for one or the other party.” I would encourage Ms. Israel to think of more positive approaches to caucuses and impart the benefits of caucuses to her clients. She very well may get different results from clients who have positive expectations.
Advantages to caucuses can be enumerated as follows:
1. Caucuses provide the opportunity to create a client-mediator bond with each party.
2. Caucuses allow mediators to obtain clarity on individual needs, concerns and perspectives without escalating tensions.
3. In caucuses, mediators can determine what kind of communication coaching might be warranted in subsequent mediations. We ask each party about their respective communication styles and how they feel about conflict in general. Those who are conflict averse may need extra coaching about how to communicate during confrontation. Further, if either party admits that his/her partner will feel controlled, or that they feel controlled by the other, we can clarify how to use language (such as “I messages”) to avoid generating such feelings.
4. Caucuses give us the space to probe for intimidation, abuse, and emotional disorders without causing one party to lose face. Without caucuses, such abuse might not surface until it becomes too late to mediate.
5. The caucus enables each party to relate the context of the divorce without interruption from their spouse who very likely has a different take on their history. We have found that the context of what gave rise to the divorce almost always has an impact on mediation. Telling their stories in front of each other with their very different perspectives on the past almost always escalates tension. The caucus avoids this escalation.
6. We can also ensure that at least one party is adamant about wanting the divorce. If we find out in caucuses that both spouses would like the marriage to continue and that they really haven’t tried therapy or other interventions that might help, we ask if they would like to try to work on their marriage. If both parties are willing to do so, we obtain permission to discuss this information in joint session. After the caucuses, we invite the couple to put mediation on hold while they seek counseling. We do not like to think that our process maintains the momentum toward a divorce when the marriage might have been saved. In some cases, couples are able to save their marriages. In others, couples return to us if counseling is not successful. But they have the satisfaction of knowing that they have done everything possible to save the marriage.
7. Some of our clients have emotional issues that surface from time to time. Holding a brief caucus to facilitate a client’s emotional venting or meltdown has nothing to do with the free-flow of information. Rather, the caucus facilitates the separation of the emotionality from the rational process of information gathering and disclosure, brainstorming, and decision-making. By holding a brief caucus to allow for emotional catharsis, the functional goals of mediation can resume without intrusive emotional needs subverting the process.
Unlike Ms. Israel, we do not see caucuses as a competition for power with our clients, many of whom come to us because of Richard’s expertise in finance. If he were to offer a financial solution that would require a concession, and if the spouse refused to make the concession in front of his/her partner, it would make that person look bad. In a caucus, a spouse can reflect on a perhaps complicated financial solution and refuse it without jeopardizing the mediation relationship. Of course, if we hold a caucus with one party, we would offer to caucus with the other.
We also use the “shuttle diplomacy” as described by Ms. Israel, especially for high conflict clients. We coach intimidated spouses to call a caucus if the mediators miss the intimidation during mediation. Our clients know that either can call a caucus at any time.
We are not sure we agree with Ms. Israel’s assertion that “Neutrality and lack of bias (to my mind) are the most powerful tools that the mediator has to offer. They let the parties both feel protected in the process, and permit one person (the mediator) to function something like a ‘universal joint’ (to use an automotive analogy) or as Chip Rose terms it, a ‘communication conduit,’ in reflecting and accommodating the different needs and points of views of the mediation clients.” To build on Chip Rose’s analogy of the mediator as a “communication conduit,” even a conduit has shape, thus influencing the flow of ideas. A conduit is not neutral; the materials of the construction (smooth vs. rough finish, for example) can alter speed and direction (of the information).
We wonder what Ms. Israel thinks about all the emerging literature about neutrality as a myth, that it is impossible to be neutral. Instead, mediators should strive to be “unbiased.” Such arguments, we believe, reduce the issue to the semantic level. Any secrets imparted during a caucus do not have to impact the mediation process negatively, even if one party confesses to being involved with a new partner. Mediator training, expertise and experience should help the mediator to transcend any acknowledged or unacknowledged preferential feelings toward either party.
Ms. Israel concludes, “And lack of neutrality (or the perception thereof) is the death of a mediation.” I would add that there can be many causes to the death of a mediation. In our experience, a lack of feeling heard by either party can be fatal (see #5 above). The initial caucuses enable each party to tell their story to the mediators, without the need to contradict the other as a result of their very different perspectives on the past. For the mediators to listen to that context uninterrupted by the other party and then feed back the story to the narrator ensures that the narrator feels heard. The storytelling completes a feedback loop so that the narrator does not have to repeat the story in joint session. It is here that the field of communication has something significant to offer mediators. From just about any interpersonal communication textbook is the axiom, “A feeling will persist until it has been heard.” The time consuming need for parties to tell their stories over and over will be preempted if they feel heard by the mediators. This “hearing” has to be two-way, with the mediators summarizing and feeding back to the storyteller, what s/he has heard, completing the loop. The feedback mechanism is crucial for the narrator who then no longer has the need to invoke the past as preface to talking about the future. This use of the caucus will save subsequent time and often preempts future conflicts in mediation when parties drag the past into the present to justify their demands.
It was good to read that Ms. Israel is, in her words, “….not a card-carrying ‘anti-caucuser,’ though I tend to make efforts to avoid it in mediation.” That she is open to using caucuses as she deems appropriate gives me hope that she is open to these additional resources caucuses provide. Rather than avoiding them, I would hope that she would be open to embracing the potential gains from using caucuses for these additional purposes. She might discover, as we have, that parties might, in caucus, make positive admissions about the other that they would not make to their face. For example, one might admit in caucus with the mediators that their spouse is a good parent, or that s/he managed the family finances very well. Some have even stated that they would like to ask forgiveness of the other. Because of current conflicts, such compliments might have never been communicated to the other. The mediators can encourage that person to make such acknowledgments either in joint session or in a private conversation with their partner. Acknowledging the good in the other or accepting responsibility for a wrong and asking for forgiveness helps build trust and confidence not only between the parties but also in the mediation process itself. Such trust and confidence help parties work together outside mediation.
We certainly agree with her statement that “A good mediation makes it more likely that the parties can handle future challenges by themselves, without a neutral third party.” Communication coaching, sometimes with both parties but often with one party at a time, helps ensure that parties can both work together outside mediation and handle future challenges. Without such coaching in caucus, parties can be doomed to failure. Ms. Israel’s article was very thoughtful and clearly articulated. We do not take issue with her reasoning or her examples; rather, our experience leads us to the opposite conclusion: that there are so many advantages to using caucuses, that mediators should embrace and not avoid them. Her last sentence declaring that she “would love to hear from other mediators (and mediation clients) regarding their views on caucusing in mediation and welcome comments to this article” motivated us to write this response. We are grateful for her invitation and hope readers will find our observations useful.
In this article I will offer a succinct overview of definitions, principles, approaches, opportunities and limits of mediation, a method of conflict resolution encompassing a wide range of practices (Burton,...By Claudia Maffettone