Want to Caucus? 3 Pros and 3 Cons
I supervised a mediation today between a landlord and a tenant. Both wanted to part ways - but were locked in a feud that kept the tenant from moving out. The landlord was arrogant, the tenant emotional and the mediators, earnestly albeit unsuccessfully, tried to bring them toward a compromise.
At one point the mediators asked for my suggestion. I recommended moving from a joint session to caucusing with each party. I know caucusing is sometimes a controversial subject among mediators, so I thought I'd lay out my case for using a caucus, at least in this case.
In my experience, using a caucus has several advantages:
Speaking with parties separately can yield a great deal of information that neither party is willing to share in front of their adversary. Sometimes the information is materially confidential (i.e. the disclosure would weaken the party's negotiating position) or personally embarrassing. Often, however, the parties are simply too angry and distrustful of the other to share any information, even if there is no reason to withhold it.
Often, it is easier for the mediator to build rapport with each party by acknowledging each person's perspective. In a joint session, a mediator has to be much more careful to maintain neutrality and thus avoiding acknowledging each party too much. In a caucus, however, a mediator can use the time with each party to build trust and good will with the parties.
During the initial joint session parties can spend a long time exchanging accusations, insults and threats. In cases where the parties have a relationship that will continue, exploring these issues can be an important step toward resolving the dispute. However, in situations where the parties will not continue to interact much after the case, spending time processing the origins of the conflict in a joint session can be a waste of time. It may be more productive for the mediator to listen to each party separately, acknowledge each party's version, and help each side move toward getting closure.
To be sure, caucusing has a few risks as well:
Usually, while the mediator works with one party, the other waits outside the mediation room. Sophisticated parties, represented by counsel may well be used to waiting. However, when a party consists of one person, he or she may become very anxious and upset if they are kept waiting for a long time.
Whenever I ask one party to wait I like to assign homework. It could be something like writing out the best/worst outcome of the mediation, the top five issues that are important to raise, etc. I find that when the parties are busy working on a task, they don't think of themselves as "waiting" but feel engaged in the mediation process. Of course, I have to acknowledge their work when I meet with them by asking them to share their list.
Building a shared reality
One of the benefits of a joint session is that the parties can fill in gaps in each others' stories. This could be very helpful in resolving a dispute, but only if the parties trust each other enough to accept new information. Often, new information introduced by one side is dismissed as a "lie" by the other. The caucus can be helpful in minimizing the tension between the parties, however if the parties are not speaking to each other about their differences, they are likely to resist the mediator(s) when confronted with an alternate perception of the events.
Honest expression of the conflict
In my opinion, this is highly useful if the parties expect to have an ongoing relationship (family members, neighbors, co-workers). However, if the relationship has been (or is being) severed, honest expression of frustrations is only important as catharsis, allowing for closure. In that case, the mediator can more effectively offer acknowledgment and leave each side to have their version of the truth.
In today's case, the landlord and tenant agreed only that it will be best for each of them if they go their separate ways. Given that shared preference, using a caucus would probably help each party move toward an acceptable solution. However, the mediators certainly have a tough task getting each side to accept the other side's version of the events.