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  • Geraldine Waxman, ESQ.

USE AND ROLE OF CAUCUS IN MEDIATION

Some mediators never, under any circumstance, caucus. On the other side are those mediators who will immediately move all parties to caucus, giving independent Opening Statements. This short article discusses that both "never" caucusing" and "always caucusing" are two sides of a "bad penny." Neither meets the needs of the parties nor, for that matter, the needs of the Process of Mediation."


Mediation if done properly, in this writer's opinion, has several tiered levels. While they do not each automatically follow each other, loosely, they do. In the first few levels, it might just be better to keep the parties together. Why, you might ask? So that (1) the parties begin to see that indeed they might just be able to work together toward a mutually acceptable agreement and (2) everyone is on the “same page” both on content and intent, regarding information.


Let's look at the Levels:

Level One: getting all the information that all of the parties wish to bring to the table on that table;

Level Two: assisting each other in formulating the agenda provides time for the parties to become

comfortable with each other;

Level Three: assisting all parties to communicate in such a way that the parties both “listen” and “hear” each other. In this way they can agree and discuss where they disagree and can begin building toward a complete agreement, something that they cannot do separately.

Level Four: And only at level four, after agenda's have been agreed upon, information outlined so that the parties can understand all the information, can the caucus effectively come into play. After all, there is a purpose to the caucus. The caucus is not the raison d'etre. The caucus as its place.

It is for 1) clarifying points 2) eliminating perceived consistent confusion, misinformation or lack of understanding 3) eliminating high tension. It is after all Not the mediation.


Our new Track 3 more fully explores with discussion and role plays the pro's and con's of The Caucus.

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