I had a good mediation recently…. I think.
It was a case that has gone on for a long while since the parties separated. The negotiation– which had taken place both in mediation and outside of mediation between counsel– had bogged down around issues of financial disclosure.
Because of the lapse of time, among other things, each party had quite understandably become frustrated with the process and each other. At this point the clients were each blaming the other’s lawyer for the impasse, and this had the potential to de-rail further negotiations.
We made the decision to conduct the mediation entirely in caucus. I rarely do this; almost always I find that parties benefit from at least some amount of face-to-face time. It is only in cases of extreme power imbalance that I will use caucusing as the main or only means of mediating. In this case, however, the parties were exhausted and felt that they would each negotiate more effectively this way.
There are advantages to conducting a mediation in caucus. It can help the parties and counsel stay focused on analysing the pros and cons of the options for settlement, and it enhances bargaining. It can be an effective process to reach agreement, particularly at the end of the mediation, once all the information has been exchanged, interests explored and options generated.
But when parties spend the entire mediation in separate rooms, opportunities are lost. The dynamic between the parties, and the lawyers, is not always easy to predict. I have had many cases where I expected fireworks and instead found cooperation, collaboration and willingness to find mutually acceptable outcomes.
Caucus mediation is also very tough on the mediator. It means you have the responsibility to convey information and meaning, and it is easy to get it wrong. As well, the mediator has a lot of power to influence the process and outcome when he or she is the only person who has seen and heard how the parties (and lawyers) are feeling. That power can be mis-used, intentionally or unintentionally, to derail the process or pressure parties into a settlement that may not be truly voluntary.
And most importantly, I may see the softening of positions, the ability to see the other’s perspective and the opportunity for a win-win; but I am not the one who matters. The good faith that arises from understanding the other’s view; from expressions of regret and remorse; from concessions made…. this is the stuff of real mediation and unfortunately, it is very hard to let parties see this is happening when they are in different rooms.
Mediation with the parties in the same room is more “dangerous” because no one ever knows what will happen. But in my experience, taking the risk is almost always worth it if the mediator is experienced, skilled and fully aware of the dynamics of power between the parties. And in those cases where the mediation cannot be conducted safely— emotionally or physically– then caucus mediation is the next best thing.
