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Chicago International Dispute Resolution Association
REFRESHER GUIDE MEDIATORS AND MEDIATION
by Erwin I. Katz
ESCAPE TO CAUCUS: THE SEPARATE SESSION (continued)
The Mechanics of the Separate Session
When the time comes to meet separately, you will:
- declare your intention (trying to avoid using the term caucus which is not a common word for most people)
- indicate the order of the meetings
- indicate approximately how long the meetings will last, then
- excuse one party.
The party that will be waiting outside should be given some direction as to where the waiting area is and asked to remain close at hand. This may be a great time to offer use of a restroom or water break. Often times mediators will give the party a task to complete while waiting, such as to think of ways to resolve the dispute. While time may go quickly for the mediator and the party inside the room, it can seem like a lifetime to the party who is waiting outside. If you are going to be a few minutes longer than expected, it is a good idea to let the party waiting outside know. You do not want to go outside after a 20 minute caucus to find that the other party got frustrated and left because you took longer than expected.
When you have one party in the room, you are ready to proceed. There are a few things that you need to remember as you begin:
Record the time that the caucus began. You may think you will remember how long you have been meeting with each party, but time moves very quickly and you don't want to lose track of it - the party waiting won't!
Separate your caucus notes from your regular notes. You should either have a separate piece of paper with you or use the back of your joint information sheet.
Review the rules of confidentiality of the separate meeting and the purpose for meeting with the party. Remind the parties at the b ginning and at the end of the each separate session that they must identify what is confidential and, otherwise you have permission to share information.
The language used by the mediator in caucus, as in full session, must remain neutral. Since you are alone with one party, it is easy to get caught up in the language used by that party. Even though the other party is not in the room, you must maintain your neutrality and your language is the most obvious way to demonstrate it.
Your reason for calling the caucus will shape your agenda. For example, if you declared a caucus to evaluate settlement options, you should start your discussion with the issue that is most important in evaluating those options. Before you begin talking in caucus, you must have thought through why you called it, where you will begin it and how you will end it. Remember, you need not talk about every issue in each separate session. Use your individual time strategically.
When you have accomplished your reason for meeting separately, you will conclude the meeting. Before you do so, you may want to check with the party and see if there is anything else they would like to share with you privately. In any case, at the end of your caucus, ask the parties to review anything that they do not permit you to share with the other side. They may give you blanket authority to share everything discussed, permission to share some amount of information, or ask that nothing they shared be discussed. If the party is unwilling to reveal to the other party something which you believe may be beneficial to a settlement, you may ask the party if they would be willing to reconsider. Alternatively, you may ask for specific permission and tell the party your reasoning for asking. In the end, whether you agree with the party or not regarding disclosure, you must respect the party's decision.
Second Caucus
To begin the mediator should go get the other party. Do not send the party with whom you have just finished meeting to find the other party. Once settled back in the room, the mediator begins the second meeting in the same fashion as the first (separate your notes, record the time, and invite the party's confidence). The difference is that the party knows that the mediator has just spent time alone with the "other side" and presumably has gained some additional information or insight. The first words out of the second party's mouth may be "So what did he say?" or "What is she willing to do?" The mediator should fight the temptation to immediately reveal information which was learned in caucus - even if the mediator has permission to do so. Your role as mediator has not changed. After the first separate meeting, you do not switch roles and become an advocate for settlement options proposed by one side or "sell the first party down the river" by immediately revealing his/her concerns.
A good technique to use in caucus is to ask questions as hypotheticals. This allows the mediator to assume the scapegoat role if a suggestion is unacceptable. The party can reject the "hypothetical" without getting angry at the other side for proposing the idea. It also protects offers of movement made by one side. You have not revealed exactly what the other side has tentatively agreed to do or not do.
The end of the second caucus is just like the end of the first. The mediator will determine what information may be shared and then bring the other party back into the room. Sometimes as a result of the information shared in separate sessions, the parties will be in substantial agreement. Other times, the parties are still very far apart.
Regardless of where the parties are on that continuum, the mediator should begin the joint session with some encouraging words. Specifically, the mediator should thank the parties for the opportunity to meet with them separately. If the parties are still far apart, indicate that is the case. Do not immediately end the session, but you may want to share with the parties your assessment and see if either has anything else to add.
If the parties are close together or even in substantial agreement, remember that there is no agreement until the parties are together. Thus, the mediator might continue (after thanking them) with a statement along the lines of, "As a result of my individual conversations with each of you, I believe that you are very close to reaching an agreement, but I am not quite certain as to the terms."
Even if you are certain the parties are at the same point, because you are the only one who knows this, you must determine how to reveal this potential consensus to the parties. Basically, you have three options after bringing the parties back together and thanking them:
-
the mediator announces the terms of the agreement
- the parties reveal the agreement to each other
- some combination of the two options above.
It is preferable to allow the parties to reveal the agreement to each other since it is their agreement. This allows the parties to assume greater ownership over the agreement. However, if the parties are highly emotional or extremely angry at one another, or the agreement is so complicated, the mediator may choose to reveal some or all of the terms. If the agreement is revealed by the mediator, the mediator should be sure to check in with each party after each term is revealed to ensure that there is agreement. At a minimum, the parties should at least be nodding their agreement as the mediator speaks.
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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),