By: Donald L Swanson
“The Mediator is a nice guy, but he needed to pound harder on the other side.”
—A disappointed litigator on why a mediation did not achieve settlement.
This quote is a common post-mediation refrain.
A Fundamental Error
The quote contains a fundamental error. The error is this assumption:
- it is the mediator’s job to persuade the parties to settle, and
- it is the fault of the mediator’s persuasion skills when a settlement fails to happen.
Caucus Format is a Problem
In the quote at the beginning of this article, it is obvious that the mediation occurred in a caucus format: i.e., with the parties sequestered in separate rooms and the mediator shuttling information and offers back and forth.
It is this caucus format that imposes a persuasion role and expectation upon the mediator: since the mediator is the only means of communication between the parties, if the mediator doesn’t persuade them, who will . . . and who can?!
A Caucus Disconnect
The result of the caucus format is a huge disconnect in expectations:
- attorneys demand effective and aggressive persuasion from a mediator; but
- mediation theorists insist that mediators must do no such thing—they must serve a neutral and non-evaluative role.
The culprit in all this is the caucus format: it imposes a persuasion expectation upon the mediator and relieves the parties and their attorneys of the persuasion responsibility.
A Caucus Oddity
And here is an oddity in the caucus approach: parties tend to send their mediation statements to the mediator, alone, and not to the other parties.
And they send it to the mediator with an expectation of privacy.
Say, what?! Think about it. The expectations behind such an approach are:
- it is the mediator who needs to be persuaded, by each party, of the rightness of their respective positions, so
- the mediator can then persuade the other side.
- In litigation, it is the duty of the parties and their counsel to persuade others of the rightness of their positions—this duty cannot be delegated to anyone else.
- In a caucus format, the parties and their attorneys try to persuade the mediator and then expect the mediator to persuade the other side for them.
- The caucus format removes persuasion responsibility, in the mediation, from the parties and their attorneys and places it upon the mediator.
- So, if the mediator does not achieve a settlement, it is the mediator’s fault for failing to “beat on the other side” into a resolution—not the fault of a party or its attorney.
That is, simply, wrong. The burden of persuasion must be on the parties and their attorneys—not on the mediator. That’s why the caucus format is deficient for mediating business disputes in litigation—it shifts the persuasion burden onto the mediator.
The Joint Session Solution
The joint session format, on the other hand, solves the problem. In a joint session format:
- The mediator’s job is to assure that, (i) each side has a full and accurate understanding of what the other is contending, and (ii) the parties conduct themselves in a reasonable and respectful manner;
- It is the job of each party, not the mediator, to persuade the other side and to find a way to settle; and
- The mediator can (and must) maintain a neutral posture throughout the mediation.
Over the years, I’ve noticed substantial resistance to joint sessions and a commitment to the caucus format, among attorneys. There are lots of reasons for this resistance, not the least of which are:
- caucus is what’s always done—no other possibility is even considered; and
- sitting in a sequestered room, letting someone else take the laboring oar and shifting responsibility to that person, is comfortable and lowers stress.
What About the High-Powered Attorney
But here’s the deal. If you are a high-powered litigator:
- Don’t you want the chance to persuade the other side of the rightness of your position?
- Don’t you believe you can sell the merits of your case better than anyone else?
- Don’t you want control over how your case is presented to the other side?
- Don’t you want to listen directly to what the other side is saying to look for settlement openings?
- Don’t you want to see the other side’s reactions to arguments and proposals to gauge what they are thinking?
- Do you really want to delegate any of the foregoing to someone else?
I think the answer to each of these questions is obvious. And joint session is your solution.
Caucus format is a major problem. And the joint session format provides a solution.
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