A caucus is a confidential meeting in a mediation, most often with the mediator and some of the members of the dispute in mediation without the other party. Caucus allows a safe exchange of information. Mediators can clarify issues and help parties recover the rhythm of a positive mediation. Used improperly, however, a caucus can derail the process.
Caucusing is an effective technique when used judiciously. Some mediators believe it is vital, a right extended to and explained as such to the disputants who are reminded to exercise this privilege at any time during the mediation.
Not all mediators share this view. Some believe that it gives mediators too much power to interpret and define the issues that should be left exclusively to the parties.
Most of the mediators at Mediation and Restorative Justice Center of Wisconsin Community Services use caucus in some form.
A caucus is an information forum. Even after trying to clarify in mediation, a mediator may find an explanation incoherent and seek information privately. Similarly, if one or both parties are evasive, it is an opportunity to speak alone. Within the privacy of a caucus, people are more willing divulge information including substantive facts as well as examining their emotions.
Parties may ask for a caucus to give information they feel is critical regardless of the legal significance. Co-mediators may caucus to give or ask for information particularly if they sense a problem between the parties or themselves.
A caucus is also an excellent forum for clients to inform themselves. By asking open-ended questions, a party may discover information about their feelings and their real interests opening the path to settlement.
A Safe Place to Process
In the privacy of a caucus, a mediator or a parties’ attorney can ask questions to reality check a position by honestly examining the weaknesses of their case and still save face.
It’s also a place to brainstorm ideas with the mediator or with multiple parties on the same side. A defendant can explore their capacity to make payments. In many cases, the parties will offer a solution as they have the freedom to discuss all possible outcomes in a safe place.
The mediator can use the caucus to learn more about how the clients feel by “checking in” with each of them separately. People may acknowledge feeling frustrated, angry, betrayed, or guilty. They may reveal something shameful or embarrassing. Just the act of telling in a nonjudgmental setting is cathartic and can shift their mindset to move on.
Changing the Pace
Many have likened mediation to a dance. Renowned mediator Howard Bellman often says that “mediation is all about that jazz.” Mediations progress when people are in sync with the same rhythm. But it can be disrupted when people erupt. It can also stall when one party remains calmly entrenched, and both feel stuck.
In caucus, the mediator can help parties take their own pulse with self-reflection about their case. Sometimes just vocalizing the weaknesses of their case gives the entrenched litigant more insight, making them more open to a different point of view. It is easier to let go. They may then take a less stringent position with the mediator one-on-one, especially if they are thinking of making a move toward the middle. Letting go helps them jump back into the rhythm.
On the other hand, a caucus can slow down an emotionally charged session. When emotions are high all around, some or all the parties do not feel heard. Allowing them to be heard, at least by an attentive mediator, is calming. It can serve as a timeout to handle one party’s difficult behavior. The mediator can remind someone about the boundaries of respectful communication which impair progress. The mediator can also help them prepare for the next difficult emotional step before rejoining the session.
But we must be careful. When the parties are freely exchanging ideas, indiscriminate caucusing will disrupt that flow. Too frequent or very long caucuses may create mistrust from the other participants.
Last, the more you caucus, the more the mediator controls the communication through interpretation and framing. It is tempting for the mediator to inadvertently start determining the issues, instead of clarifying or reframing what is important to the parties.
Some mediators dissuade parties who want shuttle mediation – running back and forth between two separate rooms – because their words to each other have more impact. There are some situations where more shuttle caucusing is necessary, such as with a couple with a background of domestic abuse, or parties who so loathe each other they refuse any other forum.
Even without domestic abuse, shuttle mediation can work in other circumstances, especially when the bargaining space is known, and parties aren’t introducing anything that hasn’t already been discussed in open session. Personal injury attorneys frequently use shuttle mediation as a preference.
Like most things, when used intentionally and with discretion, caucusing is useful for exchanging information, and providing a safe place to reality check, brainstorm, and examine feelings.
The author wishes to thank the contributors to this article: James F. Guckenberg of Halling & Cayo, S.C.); Brent Nistler of Hanson Reynolds, LLC; Ramona V. Larson, a compliance consultant, arbitrator, and mediator; George Hall, mediator, and retired urban planner and administrator from the Wisconsin Department of Administration; and Wendy Weinfurter, school counselor and mediator.