One of the most useful and flexible of mediation tools is the mediation caucus.
A mediation caucus is a private meeting with a subgroup of participants. The mediator often holds separate caucuses with each party and the party’s attorney. A mediator can also chose to hold an attorneys’ only caucus with the attorneys for all the parties, or even a caucus with just one attorney. On occasion, the mediator may ask counsel for permission to hold a parties only caucus. The caucus is an important part of the overall process and serves a critical role.
Here, we’ll discuss how a mediation caucus works and what you can do to make the most of it. This discussion focuses on those mediations in which most of the work is done in a joint session. Depending on the mediator and the preferences of the parties involved, often a joint session is used only to introduce the process and set ground rules. In those cases, most of the work is actually accomplished in caucuses. Even in cases where most of the exchange of information and proposals is done through caucuses, the general guidance provided here applies.
The Purpose of a Mediation Caucus
There are countless reasons why a mediation caucus might be called and very few rules dictating how it should be done.
Any party involved in the mediation, including the mediator, the disputing parties, or their attorneys, can call for a caucus whenever they choose. Sometimes, a mediator will strategically plan a caucus in order to provide planned breaks in the joint session. Other times, a caucus may be called spontaneously as the need arises.
A caucus may be called for any number of reasons, including:
- To give disputing parties the opportunity to brainstorm or discuss solutions privately with the mediator and/or their attorney;
- To provide the parties with a break in order to relieve tension, calm nerves, or settle emotions;
- To let a party privately consider an offer and weigh the pros and cons;
- To give the mediator a chance to offer negotiation or settlement advice privately to each party;
- To afford the parties time to privately draft settlement proposals;
- To allow the parties to reveal confidential information to the mediator;
- To permit the mediator to clarify points, arguments, or issues with the parties privately; and
- To give parties time to reevaluate their goals, wants, and needs
As useful as they may be, mediation caucuses, if not handled properly, can also cause confusion, hostility, or resentment, and may also cause the parties to question the neutrality of the mediator. To ensure that the caucus is a successful part of the mediation process, it’s critical that boundaries are established.
First, a caucus must be completely private. This means that the parties must be physically separated, and the caucus must be held in a space that allows for both auditory and visual privacy. This helps the parties trust the process and allows them to put their guard down.
Second, it must be understood by all parties that caucus sessions are confidential, unless they specifically agree otherwise. The mediator needs to clarify with each party what they would like to remain confidential and what can be discussed when the joint session reconvenes.
Third, most caucuses work best if the mediator holds a caucus with each of the disputing parties. This helps to maintain a clear level of neutrality and balances out the conversations and negotiations.
Finally, remember that this is a flexible process. The parties and mediator can establish their own caucus rules, so long as they’re ethical and mutually agreed upon.
How to Make the Most of the Caucus
Just like the opening session, there are ways to make the most of a caucus.
One of the most important points to remember is that a caucus is an opportunity to make progress. It allows you to step away from the joint session, calm your emotions and nerves, gather your thoughts, and get valuable advice. It’s not a punishment or time-out; it’s a vital part of the process and will help things to move along.
At the same time, it’s also important that you don’t abuse this tool. If you call a caucus too often, it will impede progress and make the other party resent you or question your dedication to the process. Yes, a caucus can provide a much-needed break, but it should not be used as a weapon against the other party or to avoid the joint session.
Finally, be sure that you’re using your time wisely. By nature, a caucus should be used as a brief break. If you drag it on, and leave the other party waiting too long, it can interfere with momentum and illicit questions and doubt. Focus on the purpose of the caucus and use the time wisely so the joint session can commence, and you can all move forward.