Abby Tolchinsky and Ellie Wertheim, New York Law Journal
December 11, 2014
When working as a conflict resolution neutral, each side, perhaps unwittingly, attempts to sway the professional to their perspective regarding the conflict. But it is the essence of being neutral that we work to understand each party’s point of view. And unlike a judge, a neutral’s take on the substance of the conflict is of little import. The work, instead, is to bring each voice into the room and to help the parties see the conflict as if stepping into the other’s shoes, in order to arrive at a compromise solution.
Therefore, as a baseline, we do not hold confidences of one party from another. There is no upside to mediators having information that one of the parties does not; Neutrals have no decision-making power in the room. Nonetheless, it is exceedingly common for parties to wish a separate meeting with the neutral, and within the mediation community it is common practice to work in a caucus model. Which leads us to question: In what circumstances and in what types of mediations is caucus productive (or counterproductive), and why?
Using a Caucus
Culturally, most people have a loose concept of what mediation is. Oftentimes, they conflate it with arbitration or envision a judge who is particularly fair and patient. Therefore, in order to bring parties actively into the mediation, an education in what they are about to embark on is essential. In our practice, we spend at least one hour together with both parties, engaging in a detailed conversation focusing exclusively on how the process works, before considering any aspects of their specific conflict. In contrast, some professionals find value in meeting separately with the parties at the outset with a similar intention of preparing them for what lies ahead.1
Forrest (Woody) Mosten, a mediator and adjunct professor of mediation at UCLA law school has developed a model in which he spends a good deal of time throughout the process working with the parties one-on-one. In his practice, after an initial joint meeting, he has what he terms “private preliminary planning sessions” with each of the parties. The goal of these private sessions is to “build rapport, help them get concerns on the table, teach them how to work in mediation, and get issues off the table so they don’t come up in the joint sessions.”2 In other words, the private sessions serve as both a pedagogical tool and a reality test with each party individually. The net result of this model, according to Mosten, is more efficient, and often, more peaceful joint sessions. Parties have been fully (and separately) prepared in how to problem solve and how to listen to each other and therefore have the confidence and tools to participate in joint session.
Another reason to caucus is that the parties are in extreme conflict and/or hold entrenched positions. In such cases, even where confidences are not held by the mediator as a matter of practice with regard to the content of the caucus communications, parties are more inclined to express their point of view. They also have an opportunity to connect with the mediator and to feel understood in this non-private, but separate conversation. The neutral is always cognizant, when using this technique, of the paradox of mediation. That is, we ask parties in conflict to work alongside each other and problem-solve together—a challenge not all parties can rise to at all times.
Naturally, in multi-party cases, in which attorneys play a prominent role in the negotiations themselves, shuttle diplomacy is the norm. In such complex litigations, typically commercial mediations and international diplomacy, the mediator is an expert in the given field of law and directly addresses, with the separate parties and their attorneys, how they view the strengths and weaknesses of their case, the likelihood of prevailing in court and the acceptable range of settlement.
Carol M. Hoffman, an arbitrator and mediator in Syosett, explains that in multi-year, multi-party cases, “it is very important to begin in the room together and to review court orders no one has reviewed in a long time. In fact, counsel may have come in at different points in the case.” In doing so, discrete issues are quickly resolved and “there’s a new baseline for building a settlement.” Thereafter she meets separately with the parties and their counsel.
At the outset, she explained, she holds the separate conversations in confidence while also encouraging the parties to disclose the caucus discussions when the joint sessions resume. During these caucus sessions, she has a variety of techniques to help the parties come closer to settlement. Among them, to “bracket.” That is, to narrow the financial range of settlement by identifying hidden potential costs, the range of court outcomes and deficiencies in each side’s case, among others. Another tool is to pose hypotheticals to the parties, thereby probing their viewpoint and exposing their risks. Additionally, Hoffman encourages each side to articulate why they believe a prior proposal was rejected—from the other’s perspective. Thus the parties begin to “get to the interests beneath the positions and evaluate their own viewpoint.”3
Often, regardless of the type of mediation, there may be significant casework imposed upon the parties to accomplish between sessions. The neutral may discuss, in session, information that needs to be gathered or exchanged, or support and guidance that outside experts may provide to one or both of the parties prior to resolving a given issue. This generally entails meeting with counsel, incorporating the work of experts such as forensic accountants, or even having conversations with the mediator.
In our practice, the latter most often occurs in the form of joint conference call on a discrete or emergency issue that occasionally may arise. In contrast, for Mosten and other mediators who caucus, time between sequential sessions offers an opportunity to speak with each party separately, for the mediator to give each party “expert, evaluative help in a confidential way.”4 In other words, the mediator builds rapport and trust with the parties individually in order to scaffold the negotiation work done in joint session.
Concerns and Questions
A significant drawback of the caucus model, as we see it, is the potential to foster mistrust and/or imbalance among the parties and the mediator. As we mentioned in the first paragraph of this article, parties almost always try to sway the mediator. What, then, is the experience of the party who is not part of the conversation between the mediator and the other party? He may well feel suspicious, excluded, curious at best, and may harbor a serious concern that the mediator has chosen his counterpart’s side over his own. From our perspective, the benefits of individual meetings with parties may not outweigh the fundamental process drawbacks of threatening trust and confidence in the neutrality of the mediator. A real challenge of serving as the neutral is to foster trust and compassionate connection with each individual.
Implicated in the caucus model, too, is the question of whether disclosure made in caucus will be held as confidential by the mediator. Since it is indeed the case that the mediator has no decision-making power in the room, then it confers an inordinate amount of power on the mediator to hold confidences between the parties. There is, of course, a hybrid model in the offing: to hold private conversations as needed, with the permission of all parties and the mediator, but to be clear in advance that nothing revealed in those caucuses will be held in confidence. That way, a mediator may create the space for a party to express herself in a setting that is safe and open, all the while knowing that ultimately the conversation is not a private one. This enables the mediator to glean information that might otherwise be withheld and use it to benefit informed decision-making and compromise. And, from the perspective of a mediator, we thereby protect ourselves from the dilemma of holding information in confidence—and undermining our neutrality.
We raise these various approaches to mediation because for all of us practitioners, there is a rather full and useful toolbox. The process is intentionally elastic, meant to accommodate, within ethical limits, the specific fact patterns and personalities with which we are engaged. The experienced mediator digests all these options and arrives at his or her own approach, which may vary depending on the case. Thus, whether or not to caucus, and, if so, in what manner, is in the neutral’s discretion. Ultimately, the mediator’s goal must be to conduct the process such that the parties participate fully, express their needs and concerns and, we hope, reach a meaningful and lasting agreement.
1. In matrimonial mediations, private sessions with each party are the appropriate way in which to provide a domestic violence screening prior to commencing mediation. Where a mediator suspects or learns of domestic violence between the parties, there is an obligation to separate the parties and provide resources to the victim.
2. Telephone interview with Forrest (Woody) Mosten, Nov. 24, 2014.
3. Telephone interview with Carol M. Hoffman, Dec. 3, 2014.