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February 7, 2019

To Caucus or Not To Caucus in Mediation?

Caucus-only mediation has become increasingly popular in many mediations for business, insurance, even more personal situations such as estate and workplace disputes. Recent research shows that the caucus-only mediation approach has negative consequences.  As an experienced mediator, that research conclusion was not a surprise to me.

During a caucus, the disputing parties are in separate rooms, and the mediator moves back and forth between the rooms, communicating their negotiation messages.  When caucus is used for most or all of the mediation, the disputing parties are rarely in the same room, hardly talk with each other or may not even see each other.

Caucus is contrasted with joint session where everyone meets in the same room. Sometimes the mediation starts with a joint session where the mediator explains the guidelines of the mediation. After that the representative for each party may have an opportunity to briefly outline their party’s perspective in an opening statement. Sometimes the opening statements and even the beginning joint session are omitted and the parties spend the whole mediation in separate rooms.

Caucus-only mediation shifts power away from the people in the dispute to the mediator. This has negative consequences which wipe out much of the value that mediation can provide for the participants.

My experience over more than 22 years has shown me that mediation is more likely to resolve the conflict and more likely to result in a durable resolution, if the parties spend a high proportion of the mediation in joint session. It turns out that researchers have reached conclusions along these lines.

The report I read recently is a study of the court- connected mediation process in Maryland, published in January 2016. The study considered the effectiveness of various mediation strategies in reaching agreement. The study also measured attitudinal shifts of the participants toward each other and their belief in their ability to work together, over the short term (immediately after mediation) and longer term (3 to 6 months later).

The study found that in the short-term the greater the percentage of time participants spend in caucus, the more likely the participants are to report:

  • the mediator controlled the outcome,
  • the mediator pressured them into solutions,
  • the mediator prevented issues from coming out,
  • less satisfaction with the mediation process and outcome,
  • less satisfaction that the issues were resolved with a fair and implementable outcome,
  • increased sense of powerlessness,
  • increased belief that conflict is negative, and
  • increased desire to better understand the other participant “presumably because they did not better understand the other party as a result” of the mediation.

In the long-term, the study found that the greater the percentage of time participants spent in caucus the more the researchers observed:

  • a decrease in participants’ consideration of the other person,
  • decreased self-efficacy (belief in one’s ability to talk and make a difference),
  • decreased sense that the court cares about resolving conflict from the time before the mediation to several months later, and
  • greater likelihood of the participants returning to court in the 12 months after mediation for an enforcement action.

Another finding was that the percentage of time spent in caucus had “no statistically significant impact (positive or negative) on reaching an agreement”.

Recommendations for more effective mediation:

The recommendations from the researchers were:

  • Encourage mediation “practices that focus on eliciting participants’ solutions and reflecting back to participants”.
  • Discourage mediation “strategies that are heavily focused on caucus and [mediators] offering their own solutions and opinions”.

When selecting a mediator, my recommendation is to:

  • Choose a mediator who is able to proceed with the mediation mainly in joint session using an approach which invites the participants to express their interests and ideas for solution.

My recommendations for lawyers and representatives:

  • Help your clients understand the benefits of joint sessions.
  • Help your clients accept that conflict, though uncomfortable, is better managed than avoided.
  • Help your clients develop strategies to listen  and express themselves effectively in the mediation.

My recommendation for using mostly joint sessions changes if there are special circumstances such as a safety risk which can be managed by using only caucus.

Although participants may feel more uncomfortable in joint sessions, my experience and this research confirms that avoiding the discomfort of conflict does not work as well for the participants.

While they may be able to reach an agreement using caucus, it is likely less effective for the participants in the short and long term. Mediation creates an opportunity to have the difficult conversation that is most effective for the resolution needed by the participants.

Nothing will lower your credibility faster than avoiding conflict.

–Morris Shechtman, 2003

Read the full report here.

 

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