Mediating Business Disputes: Caucus Format is Unfortunate

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A joint session of trees (photo by Marilyn Swanson)

By: Donald L. Swanson

Should a mediation be in joint session or caucus?

For mediating business disputes, joint session is the better approach—by far. I’ll try to explain.

Two Observations

Here are two observation about the joint session vs. caucus method for mediating business disputes.

1. People with little-or-no experience in mediation tend to expect a mediation to occur primarily in joint session. By “joint session” I mean that everyone meets in the same room to discuss the issues and seek solutions together.

2. Attorneys with lots of mediation experience tend to expect a mediation to be in caucus format exclusively.  This approach is so deeply ingrained that many aren’t open to even discussing the joint session possibility. By “caucus format” I mean that opposing parties and attorneys are sequestered into separate rooms, upon arriving at the mediator’s office.   And they stay there, never to meet again—except to avoid or ignore each other in and around toilet areas, with the mediator shuttling offers and explanations between the separate rooms.

A Theory on the Second Observation

Here’s a theory on why the second observation exists:

Experienced attorneys, (i) have been trained by the mediation system to expect and demand a caucus format, and (ii) find discussions with the mediator less stressful than face-to-face discussions with an adversary on difficult issues.

A Theory on How Caucus-Only Developed

Here’s a theory on how the system for mediating business disputes has become a caucus-only process.

  • Mediation became a common tool for resolving lawsuits in the context, primarily, of auto accident, slip and fall, and similar tort cases. Both the insurance companies and the plaintiff’s bar found mediated settlements, in such cases, to be far-better and much-more-satisfactory than actual trials. And so, mediation became a regular and indispensable tool for resolving such lawsuits.
  • The relationship between disputing parties in an auto accident or slip and fall case is often limited to a split-second occurrence with brief discussions that immediately follow. So, when mediation time arrives, (i) there isn’t much to discuss, and (ii) among the decision makers are insurance company representatives, who have no prior contact, whatsoever, with the plaintiff, and (iii) a caucus-only format makes sense.  As a result, participating attorneys (and mediators) came to see mediation as a caucus-only process.
  • When mediation expanded from such tort cases into business lawsuits, the caucus format came with it—because that’s what mediators and lawyers had experience with and knew how to do, and it had become comfortable.  Moreover, it provides a low-stress means of dealing with conflict.

Caucus for Business Disputes — Unfortunate

The expansion of caucus format into business disputes, as the exclusive format, is unfortunate. Here’s why:

  • In most business disputes, the parties have a history of dealing with each other—their present disputes are colored by their past relationships and will affect their future dealings (if any) as well.
  • The disputes are grounded in past relationships—the parties have a host of experiences and assumptions and expectations that a mediator can never hope to fathom in a limited series of caucus meetings, let alone adequately explain to and discuss with the other side.
  • Only the parties, themselves, in face-to-face discussions, are able to explore their history, and the differences and understandings and misunderstandings that have resulted, in full and meaningful ways—and it is the role and responsibility of a mediator to help them do so, face-to-face, in joint session.
  • As I look back on my efforts as mediator, a primary regret is that I have occasionally accepted caucus format as the exclusive approach in a mediation where a joint session would have been better.

Conclusion

Here’s hoping that the general practice for mediating business disputes can turn to joint session as the primary and presumptive format.

** If you find this article of value, please feel free to share. If you’d like to discuss, let me know.

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