How Caucusing can Facilitate ADR

Meeting separately with the various parties to a dispute can be a useful strategy for a mediator to adopt. This can be done by conducting separate sessions and this is what is called caucus meetings.

Why meet separately? Frequently, parties could find themselves in a position in which they need to provide the mediator with pertinent information that they do not want the other party to hear. Such information could range from their perceptions of their adversary’s personality, to bottom-line negotiating positions. The mediator must develop a procedure for capturing that important information necessary for him to assist the parties in reaching a consensus. Sometimes the mediator wants to press a party on a particular position it is advocating but to do so in the presence of all parties would undermine his or her perception of impartiality by the other parties. It is also more conducive to have parties consider alternative resolutions to a problem if they are provided the luxury of considering such alternative without the pressure of being required to provide an immediate answer to their negotiating counterparts.

Parties can also discuss openly about the case, their weaknesses, strengths and the views of their opponents case without the fear that what they discussed will be shared with the other side.

It is therefore usual to follow the first open session with caucus meetings with each party in turn and it is in these private meetings where the role of the neutral third party really comes into play. An effective mediator should not expect the parties to say their mind at the first caucus meetings. In theory, the parties should be prepared to do so because the mediator is neutral and therefore not a threat. In practice the parties will test the mediator to be sure that they can trust him or her. The first caucus with each party often serves just to reinforce what was said in the first session with the parties reaffirming the battle lines and emphasizing to the mediator that they have a strong case.

Sometimes, the mediator should call for separate meetings only when movement must be generated or commitments to particular proposals fixed. For example, if none of the parties indicate flexibility in their initial proposals, then the mediator might meet separately to explore and test their receptivity to alternative positions. If one party’s decision on one matter will block an agreement , the mediator should meet with that party to explore and remind the party of the cost of its decision. If a party makes a concession but in a subtle manner, the mediator might meet separately with the party to confirm that the movement was intentional and not a misstatement.

In each instance, the mediator meets first with that party from whom movement must come.

The mediator begins each caucus by telling the parties that it is not important how long he or she  spends with a individual party. Each party will have his or her own opportunity to meet with the mediator on each caucus occasion. The mediator should remind the parties that what is said will remain in confidence, but that the purpose of the session is to provide the mediator with an enriched insight as to what constitutes an acceptable resolution of the issue(s) for the parties.

In a separate session the mediator can point out inconsistencies in a party’s position, reinforces the realistic constraints within which the other parties must act. The mediator wants to gain a clear insight into the priorities the party attaches to various concerns and generate the feeling of confidence in the party that some movement will not jeopardize the attainment of primary objectives.

Having gained insights as to the potential flexibility of one party, the mediator must then convey that fact to the other party without jeopardizing the confidentiality of the process. The mediator accomplishes this in various ways. He or she can convert private concessions or movement into a hypothetical scenarios such as: If  A agrees to hold their demonstration on Broad Street Street rather than Race Course, would you grant them a parade permit? Or the mediator can pursue an independent line of questioning that will lead the party to offer a proposed solution that falls within the range of acceptability that the other parties have in their separate caucuses, previously revealed to the mediator.

In this sort of diplomacy, the mediator forges the terms of agreement. Then there is the challenge of how the mediator will inform the parties that they have reached a settlement. Two options exist, the mediator brings the parties back with joint session then he or she can either;
  1. Identify the issue and the terms of agreement and simply ask the parties to confirm their consent or

  2. The mediator can identify the outstanding issue(s) and ask each party to mediate what its offer of resolution is.
The advantage of the first approach is that the mediator can control the responses more closely, and the advantage of the second procedure is that the parties who must implement the agreement are communicating directly with one another and through the process of verbalizing their commitments to particular terms, may reinforce their own commitment to the durability of the agreement.

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