The case for private caucus

Issue September/October 2017 By Brian R. Jerome

After a joint session, a skilled mediator may ask to have private caucuses or meetings with each party and their counsel to further explore their position and flexibility for settlement. These private caucuses, like the full mediation process, are confidential; as such, the parties often find it easier and more appropriate to discuss certain issues or their willingness to show flexibility.

The mediation caucus has been the recent target of some harsh criticism. Detractors dismiss it as simple shuttling back and forth by the neutral, which 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. It is argued that with the absence of the opposing party, it's easier for one side to exaggerate or manipulate the mediator. Sometimes one party fears that the other party has somehow co-opted the neutral in the other party's favor and that the mediator is no longer unbiased when they come back into the room.

The caucus can also shift the role of the mediator from neutral to primary advocate or agent for the parties, both hearing and making the essential arguments. There also exists a risk that the mediator may inaccurately convey information, or do so out of context. There is, as well, the argument that a mediator has too much power to influence the process and outcome when they are the only person who has seen how the parties and their lawyers are feeling and acting.

Some even argue that caucusing generally results in but a series of shuttled offers rather than the processing and exchange of views, and subsequent change of perception and awareness, that are the essence of many successful mediations.

To others, the key problem with the private caucus is that it thwarts a fundamental mediation benefit: the opportunity for those most intimately familiar with the details and history of a dispute to be directly involved in its resolution. Indeed, from issue identification to problem solving, direct communication between the parties is often the most productive and efficient way to advance toward resolution.

Perhaps the most significant apprehension associated with caucusing is the potential for mediator violation of confidentiality, either inadvertent or purposeful. A mediator needs to be unconditionally vigilant not to reveal confidential information. In fact, it's strategically valuable that the mediator explain to the parties at the outset that they will not divulge what is said in caucus without that party's consent.

Notwithstanding these criticisms, private caucusing is an extremely useful tool in the mediator's arsenal, allowing the neutral to learn more about the elements of the dispute and more about the parties themselves and their fundamental needs and interests. Caucusing can lessen tensions by providing parties the space to vent and to feel understood while speaking in private to the mediator. Caucuses provide the opportunity to create an effective client-mediator bond. When the mediator is demonstrably neutral, credibility is established and any concerns about an abuse of process are greatly reduced. It is powerful for the parties to make their views known clearly, and to feel the mediator understands their perspectives.

Caucusing provides an opportunity for a mediator to help clients process the messages sent by the other party, to give parties care and attention, and to promote resolution of issues individually with each of the parties.

The viability of private caucusing depends, quite often, on the type of case and the parties' goals. For example, in divorce and custody disputes, where the parties will be dealing with each other long after the mediation has concluded, face-to-face negotiations oftentimes seem best suited toward achieving resolution.

In civil case mediations, caucusing is a more integral and helpful feature of the mediation process. The parties more often than not will have nothing or little to do with each other post-session, thus, the burden that caucusing could pose to any future relationship is less commonly an issue. Particularly in civil cases when money or settlement value is the key concern, the parties will come to the mediation with their lawyers, understanding that in their situation a strong caucusing element with features of shuttle diplomacy by the mediator is generally very effective.

Whatever the reason for caucusing, there are a few things good mediators establish if they are going to use this technique. Upon commencement, experienced mediators will explain what private caucuses are, their confidential nature, and that they may be held at some time during the mediation. The parties should be aware of how caucuses can help, and that either the parties or the mediator may request a caucus.

Confidentiality is a principal element that mediators must consider before they employ caucuses. Although a caucus may involve confidential information, it's not about telling secrets or about excluding individuals, and it is assuredly not about leveraging position based on confidential information. Rather, these private discussions should be kept privileged by the mediator, and only those proposals that a party specifically authorizes a mediator to share with the opposing party should then be divulged. The mediator can be proactive and ask for permission to share information and proposals they believe will move the mediation forward.

Many mediators chose a process whereby everything said in the caucus may be shared except what the participant wants kept confidential. The other option is to explain that everything said in the caucus will be kept confidential except things specifically identified by the participant that may be shared. The former process permits the neutral to utilize their skills and experience to determine what, if anything, should be shared or held back when working with the opposing parties in order to best facilitate the process to the benefit of all involved.

Time is a major consideration in managing caucus sessions. Managing time so that the opposing party is not left alone for too long is typically advantageous. The party not in caucus may be left feeling worried or stranded, particularly after the momentum generated from the initial joint session. Before breaking into caucus sessions, it helps to reassure the parties that the length of time in these private meetings may be different with each party and is not entirely predictable.

The key value of the caucus session is that parties can talk frankly and freely about the dispute, compared with the more guarded expressions experienced when meeting jointly. The private and confidential nature of the caucus tends to decrease anxieties, allowing the parties to share case strengths and weaknesses, their view of the opposition's case, and their underlying interests, as well as allow for suggestion of new ideas for solutions.

A mediator can ask questions in confidence that a party might not want to answer in a joint session. A skilled mediator, particularly in private sessions, is likely to discuss with each party the realities and alternatives facing them if, for example, they decide to go to trial. Most parties appreciate candid discussion regarding their chances of a verdict in their favor, information on a likely decision or award, an estimate of time it could take to get to trial, and how much it might cost financially and emotionally to go through a trial. In private caucuses, the mediator can also offer negotiating advice and work to develop settlement proposals.

Some parties may be resistant to hearing such realistic messages, even from their own attorneys; they may have overly optimistic assessments of what a trial may result in should they decide not to accept settlement. The mediator can be quite effective, as an impartial and experienced neutral, in dealing with unwarranted optimism.

Sometimes the relationship between the parties has become problematic. A caucus can be called to allow parties to vent intense, built-up emotions without aggravating the other party. Caucuses are frequently helpful in clarifying misperceptions. These private meetings are essential when used to address unproductive or negative behavior, and to limit destructive communications between the parties.

Mediators orchestrate the use of caucuses to fit the nature of the case involved and toward the particular needs and interests of the parties. A private, confidential caucus is a valuable tool which can produce impressive results. Utilizing this procedure, the parties have an opportunity to openly discuss their needs and interests, compared with less optimal information gleaned during joint sessions where guarded expressions of information are often invoked because the other party is present. Private caucuses put the parties at ease, allowing uninhibited discussions and realistic consideration of the strengths and weaknesses of their case as well as that of their opponents. Private caucuses allow the parties to thoughtfully work with their mediator to reach productive solutions and resolve even the most challenging matters.

Brian R. Jerome, Esq., is founder and CEO of Massachusetts Dispute Resolution Services, one of the first full-service DR firms established in Massachusetts. Jerome has served exclusively as a neutral for 26 years on a remarkably extensive array of subject matter in over 12,000 cases. He is the chair of the MBA's Dispute Resolution Section.