“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.
Short-term effects
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”
Long-term effects
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.”
Study Recommendation
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?
MEDIATBANKRY 
There is no “correct” way. The joint opening session with opening statement from lawyers and clients is an effective way to set the table. It can lead to fruitful discussion, but usually stimulates break out sessions. Once that happens, it may be hard to get everyone back in the room. Shuttle diplomacy works to a point; and at that point its good to get the parties together. How to accomplish this is the art of mediation.
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Thanks, Lou, for your insights. Always helpful!
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I am not surprised about the findings–i try to get the parties in joint session to discuss and hopefully agree on the real issues and to have the true disputants avtively involved if not leading the discussion.Not easy especially given avoidance preference due to poor communication skills and lawyer preferences and power –see my linked in article Have lawyers hijacked the promise of mediation
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Whose conflict is it? Why do lawyers have to make opening statements? This not court. Why are the parties separated this is not court?
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I have watched a couple of British TV programmes with mediators trying to resolve post- marital conflicts. It was obviously one hell of a work for the mediator to shuttle between the two sides and although she did her best, the two opponents only grew more angry and less motivated to be honest. I can recognise all of the above downsides. The few mediation where both parties were in the same room, plainly worked out much better. They were able to hear and feel each other’s pain and were not filtered by whatever generalisations, deletions and distortions made by the mediator.
In Denmark we almost always have both sides together in the same room. Wonder what cultural differences are at play here.
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I agree with Lotte, hearing and feeling each other’s pain unfiltered can be very important and can move parties. I’m a little surprised that no one has mentioned the potential for inadvertently manipulating the outcome since the mediator becomes the person with the fullest picture of the problem when one depends too heavily on caucusing. Jack Himmelstein of the Harvard Program on Negotiations covers this and other reasons to minimize caucusing very well in his book “Challenging Conflict: Mediation Through Understanding.”
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Preferably no caucus. But it depends on the matter: business or family related. The perspectives for the relation between the parties in the long term. Joint sessions can be more exhausting but help to clear out a lot and everybody will benefit form it in the long term. By the way there will always be conflict (nature of Life), so no use to run away from it. But you can decided not to participate in disputes or at least end them.
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Thanks for the great insights in all the comments above. Much appreciated!
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