“Nothing will lower your credibility faster than avoiding conflict.”
–Morris Shechtman, 2003
Conflict is difficult. And conflict is uncomfortable. So, the easiest and most comfortable way to handle conflict . . . is to avoid it.
That’s why caucus-only mediation has become standard practice in many mediations of business disputes.
In a caucus mediation, the disputing parties sit in separate rooms, and the mediator shuttles back and forth between them conveying negotiating messages. In a caucus model, the disputing parties rarely talk to each other, rarely have to be in the same room together — heck, they don’t even have to see each other!
Some caucus mediation sessions begin with everyone in a single room, where the mediator explains what will happen and why the parties should get their disputes settled. But this joint session appears to be trending out-of-fashion in business mediations—because the parties want to avoid spending time together.
In such beginning joint sessions, a representative of each party can give an opening statement. But such opening statements have been out-of-favor for quite some time—because it’s uncomfortable.
Obviously, caucus-only mediation puts a heavy burden on the mediator to listen carefully and communicate faithfully between the disputing parties.
But there are, apparently, negative consequences from avoiding conflict via caucus-only mediation.
A Mediation Study
A 2016 report on a mediation study is published, in January of 2016, on the effectiveness of various mediation strategies.
Here are some of the findings and a recommendation from the study on the caucus mediation model.
According to this study, the greater the percentage of time participants spend in caucus, the more likely the participants are to report that:
–the mediator “controlled the outcome”
–the mediator “pressured them into solutions”
–the mediator “prevented issues from coming out”
–they are dissatisfied “with the process and outcome”
–they do not believe “the issues were resolved” with a “fair” outcome
–they do not believe “the issues were resolved” with an “implemenable” outcome
–they have a “sense of powerlessness”
–they have a belief that “conflict is negative”
–they have a residual desire to “better understand the other participant”
According to this study, the greater the percentage of time participants spend in caucus, the more likely the participants are to report:
–a decrease in “consideration of the other person”
–a decrease in “one’s ability to talk and make a difference”
–a decrease in the sense that “the court cares about resolving conflict”
–an increase in “the likelihood of returning to court . . . for an enforcement action.”
Accordingly, the recommendations of the study include this:
to “discourage strategies that are heavily focused on caucus.”
Consistent With Experience
This recommendation seems to be well-taken, based on my experience.
As I look back over decades of mediation practice, on all sides of the table, items of regret from mediation often center on caucus-only situations. Examples of such regret include these:
–a personal injury plaintiff wants to tell his story directly to the other side, but doesn’t get the chance.
–a fact dispute might be resolved in a face-to-face discussion of fact issues between the parties in a joint session, but the joint session doesn’t happen
–a credibility issue might be resolved in face-to-face discussions, but that possibility doesn’t get a chance.
What do you think?