Caucusing: Help or Hindrance in Mediation?

Written by John Curtis on . Posted in Mediation

Have you ever watched an MMA fight? You’ll see fighters who are loath to give up even when their bones are at the breaking point. Then there are others who “tap out” if a hold starts to feel uncomfortable, if they feel tired, if they don’t want to deal with the strikes that may be coming. This is a good way to look at caucusing; sometimes, you just have to say, “Ok, enough. I don’t’ have anything else.” Other times, you have to fight the good fight and give it your all. Often, mediators turn to caucusing when they feel uncomfortable, when they feel tired, and when they don’t want to deal with the emotion and tension that is coming.

Just to be clear, mediation hardly, if ever, results in broken bones, and you usually don’t have to deal with cauliflower ear. Maybe this is what some mediators are afraid of?

Caucusing does have its place, and it is an important tool to have in the toolbox in case you need it. This method can be advantageous in some circumstances:

  • Separating parties can be useful, especially if there is extreme anger, fear, or intimidation involved.
  • If there is an extreme imbalance of power, caucusing can keep one party from overpowering and intentionally or unintentionally intimidating the other.
  • If one or both of the parties is not able to express themselves clearly, it may benefit everyone to take a step back and meet separately.
  • When it is used as part of the process instead of as the whole process, caucusing can be effective.  Very occasionally it is the whole process and then the mediation turns into a form of shuttle diplomacy.

The success of caucusing depends on the skill of the mediator.The downside comes when:

  • The mediator inadvertently relays information incorrectly or assumes or appears to have a bias.
  • The mediator has a level of influence on the proceedings because he/she is the only one privy to both sides’ information.
  • There is no opportunity for good faith and understanding to grow, as happens with mediation that includes all parties in a joint session. This is the biggest downside of caucusing.
  • Parties have little opportunity to demonstrate empathy for the other side because there is no interaction. The opportunity to see other perspectives is significantly reduced.
  •  The role of the mediator is also significantly affected; with caucusing he/she becomes more central to the action. Mediators usually strive to beome less and less involved as parties begin to work in a constructive way.

Caucusing is a good backup to be able to fall back on; but that’s what it is: a second best choice when there is no other way to break a hold. I have found that mediation in joint session (with all parties present) is more effective and satisfying for all involved, even though it can sometime feel daunting for the mediator.

John Curtis

John Curtis

John Curtis is a successful lawyer with over 15 years’ experience in litigation focusing on Sport Law and Mediation Services. In addition, he is an expert in providing engaging, hands-on Conflict Resolution Training including Mediation Training, Negotiation Skills Training and Conflict Coach Training