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Chicago International Dispute Resolution Association
REFRESHER GUIDE MEDIATORS AND MEDIATION
by Erwin I. Katz
ESCAPE TO CAUCUS: THE SEPARATE SESSION
At some point during the mediation session, you may decide that you would like to meet
separately with each of the parties.
A separate session should only be called when you have a reason to do so. Some mediators do not declare an impasse unless they have had an opportunity to meet with the parties separately. Some mediators prefer not to disrupt the flow of the joint session between the parties and seldom call a caucus. You will find your preference and style for determining when and if to call a caucus as you become more comfortable with your role as mediator. Remember, regardless of your mediation style, caucus has a reason and a purpose. If you do not have a reason and a purpose for calling a caucus, then do not call one.
Why Meet Separately
The following are some reasons why you might decide to meet privately with each party.
Explore settlement options
Sometimes you will sense that the parties may be more open to discussing potential options if they could do so without the other party being present. You may want to begin with the party that appears to be willing to negotiate, but there is no strong preference for who you meet with first if this is your reason for meeting separately.
Signal warning signs
During the session, one party may be exhibiting certain behaviors which threaten any possibility of agreement. If this occurs, the mediator should meet first with the party who is exhibiting the behavior.
Confirm movement
At the start of the session, one party may have indicated that the only acceptable resolution is for the other party to move. As the discussion progresses, the party appears to signal a change in that position, but the mediator is not sure and does not want to risk having the party lock themselves into not reconsidering the previous position. The mediator would meet first with the party who is indicating movement.
Address recalcitrant party
Every so often, one party will take a position early on in the session and not move from it. It may become apparent to the mediator that the session will quickly conclude unless the other party is willing to meet the demand or the recalcitrant party is willing to consider movement. In such instances, the mediator should meet first with the "recalcitrant" party.
Pause
At times emotions can run hot and you may sense that the parties need a break to control outbursts, to collect themselves, stop crying or calm down. Separate meetings can provide this opportunity. Use your judgment whether to meet first with the person who is upset or to meet first with the other party to give the upset individual an opportunity to collect themselves privately.
Evaluate
Finally, a caucus may be deemed necessary to evaluate the proposals that are currently on the table. A private session affords the parties the opportunity to take a few moments to assess the impact of accepting or rejecting a potential resolution without the pressure of having the other party in the room. It also provides reflection time completely on one's own when the mediator meets with the other party. If there are multiple parties with shared interests or a party is represented, they may request separate sessions so they can consult. The mediator can meet with either party first in this situation.
Why Not Meet Separately
Your mediation session should not automatically include a separate session. The following are some reasons why you might decide not to meet separately with the parties:
It is unnecessary
If the parties are making progress and working together, there may be no need to stop them and meet separately. In fact, doing so might disrupt the momentum which has developed and have the effective of interrupting rather than assisting the process.
Low level of trust between the parties
Sometimes the parties have developed a very low level of trust between them. The dispute will not be over unless they see and hear from the other exactly why the other party is willing to concede. Breakthroughs that happen while one party is out of the room will be viewed with suspicion and not accepted. In such circumstances, it might be best to keep the parties together.
The goal of every separate session is to discuss matters that are relevant to developing a settlement. Non-agreement between the parties and "not knowing what else to do" are not reasons to meet separately. It seems overly simple to point out that the parties will not be in agreement from the outset of mediation. However, one of the most common misuses of caucus occurs when the parties state in their opening statements that they do not agree, so the mediator immediately (or very soon after the mediation begins) calls for separate sessions. Because the caucus is called so early in the process, it becomes a summary of what the parties said in joint session rather than being of any real use. By doing so, the mediator has not provided the parties with the opportunity to negotiate for themselves, and thereby has not fostered joint problem solving.
The amount of time a mediator spends with each party in caucus need not be identical. The mediator should promise equal opportunity to meet separately, not equal time. Although you must provide the opportunity for each party to meet separately with you, the duration times need not be identical. In fact, it will rarely be identical. If the reason for calling a caucus is to address the recalcitrant party, you will probably spend more time with that party than the other. If you find that you have met with one party and do not have a reason for meeting with the other party, remember that the party may have a reason for wanting to meet with you. You can begin the second meeting by letting the party know that you do not have anything you need to ask or share but are available to devote time as needed, and ask whether the party has anything s/he wants to share before joining back together. Thus, the second meeting might last only a minute or so. Nonetheless, you have provided the party an opportunity to meet with you and since it was the party's decision to end the meeting, the mediator preserves the appearance of impartiality and the party will be less likely to be suspicious as to why the other person met with the mediator for so much longer.
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Peter V. Baugher,
President
One South Wacker Drive, Suite 2800, Chicago, IL 60606 USA
312-409-1373 (Telephone), 312-701-9335 (Facsimile),