By: Donald L Swanson
Let’s say that a mediation among four parties or more is a “multi-party” mediation.
Here’s how a caucus format works—inadequately—in a mediation among four parties:
- the mediation starts at 9:00 a.m. with a half-hour joint session to set the rules and format, whereupon, the parties split into sequestered conference rooms, never to meet again (except in and around toilet areas);
- then, the mediator spends a half-hour with each party to discuss initial positions—from 9:30 a.m. to 11:30 a.m.;
- It’s now nearly lunchtime, we’ve only just begun, and time is already getting short.
This is a problem—a serious problem!
And what if the number of mediating parties is six or twelve? The caucus format does not work. Period.
The Joint Session Solution
A joint session format, by contrast, works well for multi-party mediations!
–How it Works
Here’s how the joint session format works in an eight-parties mediation:
- Everyone starts at 9:00 a.m. in the same conference room, in joint session;
- The mediator begins by focusing, one-by-one, on each party during the joint session with this goal in mind: to assure that everyone understands each party’s position and the contrary arguments against each position;
- Then, while still in joint session, the mediator helps all parties understand the range of what they would gain or lose, under the positions asserted by each party;
- Now, it’s 11:30 a.m., and the mediator asks this question while still in joint session: “So, how are we going to settle this?”;
- By now, everyone understands the full picture and is ready to negotiate in earnest—and face-to-face negotiations begin immediately in joint session;
- Face-to-face negotiations continue in joint session—a couple or three parties may break away from time to time to negotiate issues unique to themselves, but the joint session continues on; and
- One explicit rule during the entire process is this: the mediator does NOT need to be present for parties to negotiate—the focus is on achieving settlements, not on mediator control.
My experience is that this joint session format works—and works exceedingly well—for multi-party mediations. The process is both efficient and effective.
- It’s amazing what creativity the parties can bring to bear in such a context.
- It’s amazing how multiple parties can be in the same room, speak directly about the merits of their own and opposing positions, and do so professionally and respectfully.
- It’s amazing how a party can come to understand, for the first time during this process, a crucial view held by one of the other parties that provides a previously-unknown opening for further discussions.
- It’s amazing how one party can begin with this position: “I’ve told you ten times we’ll never do that . . . we haven’t changed, and we won’t!” Yet, in the course of addressing multiple inter-related issues, they end up doing what they said they wouldn’t . . . and a whole lot more, too!
I’ve been surprised as parties in such mediations identify, together and for the first time, a nuance that provides a breakthrough for settlement. It’s thrilling!
And I’ve often thought in such a context: “I could’ve bounced around among the parties, in caucus format, for an entire week without coming up with that breakthrough nuance!”
Joint session is the best format for handling multi-party mediations. The caucus format is, simply, inadequate to the task.
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