Caucusing Part 1
Written by Gary Shaffer
Caucusing – speaking to parties separately outside the presence of each other – is a standard part of most mediations. It is essential in just about every commercial, employment, or personal injury matter. Parties often feel free to say things to the mediator that they do not want to say to the other side. And the mediator can say things to parties and their attorneys that could not be said in a joint session. It also allows the mediator to develop a strategy to help bring the parties positions closer together.
Whatever a party says in the caucus is confidential, unless they agree it can be disclosed. In multi-party matters, this can become a bit complicated but the basic rule is the same.
Caucusing may be less frequent in family or community matters, where a critical goal is to help the parties communicate directly with each other outside the mediation. Here, the mediation can provide a safe environment where people can begin to communicate directly about hard or unpleasant issues. The process can establish a pathway through which:
Direct communication can really develop;
True understanding (even if not agreement) emerges; and
Lasting (and even transformational) changes occur.
Sometimes a mediation needs to begin solely as a caucus, and even continue that way for a while before the parties can meet face-to-face. One example: allegations of sexual harassment. Some pre-mediation discussion will help the mediator determine whether it may be more appropriate and productive for parties to start out separately. If one party says they don’t want to be in the same room as the other party, serious consideration must be given to respecting that position.
In divorce matters, couples typically remain together in the same room as they and the mediator work through the difficult issues of money, kids, and resentments past and present. The communication that often develops through the mediation can become a template for how they will communicate and resolve issues in the future.
But even in divorce/family matters, there may be times when separate conversations can help the parties address matters they are hesitant to tackle. Often what a spouse/partner raises separately in a caucus can be discussed together after talking 1-on-1 to the mediator. Getting various concerns or complaints off one’s chest in private often creates the freedom and courage for direct discussion.
The trust of all parties is essential if caucusing is to be successful:
The party you are caucusing with must trust that you will not reveal anything told you in confidence.
The party not in a caucus at the moment must trust that you are not being improperly played by the other side.
Each party must trust that your sole interest is in achieving a solution that works for both and does not give an advantage to one.
Gary ShafferGary Shaffer