Over-Use Of Caucus Format In Mediation Is A Bad Thing? (A Study)

By: Donald L Swanson

A study [fn. 1] of mediations in small claims cases reaches this conclusion:

• The over-use of a caucus format is bad for mediation.

Findings

Specific findings supporting such conclusion include the following.[Fn. 2] In a small claims mediation, a greater percentage of time spent in caucus:

• results in a greater likelihood of participants reporting that the neutral controlled the outcome, pressured them into solutions, and prevented issues from coming out;
• results in a greater dissatisfaction among participants with the mediation process and outcome;
• results in a greater dissatisfaction with the fairness and implementation of the outcome;
• decreases the participants’ desire to better understand the other party;
• decreases the participants’ consideration of the other person;
• decreases the participant’s sense of self-efficacy;
• decreases the participants’ sense that the court cares about resolving conflict, which decrease in perception spans, in retrospect, a period of time from before the mediation session to several months later;
• increases the participants’ sense of powerlessness
• increases the participants’ belief that conflict is negative; and
• increases the likelihood of the parties returning to court in the subsequent twelve months.

Explanations

Explanations about such findings, from the study’s authors, include the following:

• A greater time spent in caucus directs participant engagement more toward the neutral and less toward the other party, which may explain the decrease in consideration of the other participant and self-efficacy;
• When separated, a party may feel less invested in the process of making changes to accommodate the other side and view the problem as being in the hands of the third-party neutral;
• In day-of-trial mediations, the parties arrive at the courthouse expecting to argue their case before a judge and are diverted into a different process—in such a context, “secret” conversations between the neutral and the opposing side may be unsettling;
• Day-of-trial mediation sessions are relatively short, lasting from 5 to 155 minutes, which may be insufficient time for the neutral to build trust with the parties and employ private caucuses without negative outcomes; and
• The findings are tied to a greater percentage of time spent in caucus, which suggests only that an overuse of caucus is detrimental (not that caucus is, in itself, bad).

Conclusion

Mediations that utilize a caucus format, almost exclusively, are everywhere.

The foregoing conclusion, findings and explanations of a study raise doubts about the advisability of doing that.

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Footnote 1.  The study is titled, “What Works in Alternative Dispute Resolution?  The Impact of Third-Party Neutral Strategies in Small Claims Cases,” by Lorig Charkoudian, Debtorah T. Eisenberg & Jamie L. Walter, U of Maryland Legal Studies Research Paper No. 2019-11 (10/07/2019).  

Footnote 2.  The study obtains data from 269 individuals in 116 cases, of which individuals 44% are plaintiffs, 49% are defendants, and 1% are both (due to counterclaims).

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