To caucus or not to caucus, that is the question

What is caucusing in mediation? This is a private and confidential meeting between the mediator and one of the parties.

When should caucusing be deployed? There is no hard and fast rule about when exactly to caucus as a lot depends on the mediator’s instinct or judgment. A decision to caucus can be used whether you are in the “shade” of the discussion or in the “heat” of a discussion. I agree that I could have used better metaphors, but “heat” and “shade” will have to do for now. In other words, caucusing is not only deployed to deal with hotly contested issues or heated discussions. It could simply be a pause requested by a client to relay innocuous information or seek clarification about an issue.

One mediator may caucus at the mere sign of a brewing disagreement, and another might simply wait until there is a reasonable and healthy amount of “hot” debate. The latter can be cathartic. It can also allow for unlocking of impasse. Simply being heard, not only by the mediator but by the other party, is often times vital for a mediation’s success.

Neither approach (caucusing in the “shade” or in the “heat”) is wrong. Trust your instinct. I allow my instinct or judgment call as to the timing of caucusing, to be guided by the following:

  1. Reality testing: This is delicate territory as you are about to offer insight into more often than not, the weaknesses or frailties in a position being taken by a party and the likely outcome of that position. As mediators, we sometimes refer to a party’s BATNA (Best Alternative to Negotiated Agreement) as a way of reality testing. Reality testing must be done carefully. You must remain respectful. Mind your tone. Be dispassionate. Deliver comments in a sort of matter-of-fact way.
    Remember: Reality testing is more safely delivered where you have built significant trust and rapport with the clients.
  2. To allow for a cooling off period: if an issue becomes heated, do allow parties time to compose themselves, reflect on their interests and/or positions or the issues. Cooler heads will likely prevail!
  3. Facilitate positive communication: This is a time when you can encourage constructive, effective, respectful and positive communication between the parties. This reset can reduce conflict.
  4. Brainstorm ideas: Use the time to help parties generate creative options in a “safe space”, including emotionally, where they will likely feel less scrutinized or judged by the other party.
  5. Deescalate emotions and defuse tensions: It is hard to imagine any sense of reason filtering through the impasse created by high emotions. If emotions start to run high, then it may be time to caucus. Offering a private space for clients to vent and air their concerns or frustrations will help parties refocus and be better equipped to engage in more productive discussions.
  6. Disclosure: Sometimes clients want to share personal/confidential information. It is ok to caucus to receive that information. That information could give you some insight into a party’s underlying interests. The information learned could also affect the need to reality test or not.
  7. Assess power imbalance: If your spidey sense goes off, trust it. A party may be settling out of fear, real or not. Take a pause to assess whether the “deal” is being made out of fear of reprisal or feeling overwhelmed. Ask yourself – what use is it for a party to settle on completely unreasonable terms (yes, it is their deal to negotiate) if the “deal” will go no further than your summary of the ‘deal’ that ends up in the email inbox of a party’s lawyer.
  8. I suppose the fail-safe will always be that the party, at least in the way I conduct mediations, will always have an opportunity to obtain legal advice on the agreement reached, in principle.

Remember the overall goal of caucusing:

  • Problem solve.
  • Help the parties to reach a settlement.

Caution: As with your intake session, you will be entrusted with privileged information in your caucus session with a client, so be very careful not to cross-contaminate information learned. That is a sure way to lose the trust of clients and possibly do more harm than good!