There are a variety of barriers to settlement throughout the mediation process. These include communication barriers, unrealistic expectations, emotional barriers, cultural barriers, intraparty conflict and fear of losing face.
This article discusses caucusing as an effective way of overcoming barriers and challenges of mediation.
Mediation caucusing
Mediation caucusing is the use of separate meetings between the mediator and the parties individually during a joint mediation session. Caucuses can be conducted at various stages of a mediation and sometimes in combination with joint sessions. Mediators often use caucus sessions to discuss the conflict and advance the negotiation.
David A Hoffman noted in his book on shuttle diplomacy that caucusing is widely used because it can overcome a variety of tactical and strategic barriers that would be difficult in joint sessions such as (to name a few):
- communication barriers
- emotional barriers
- information barriers
- cultural barriers
- strategic barriers
- unrealistic expectations
- obstacles to generating options
- need for negotiation coaching
- need for process management
- internal conflicts
- fear of losing face
Communication barriers
In mediations with particularly high-conflict behaviour, the parties may communicate aggressively and may find it difficult to remain in the joint session. A skilled mediator will reframe the statements made by each party and may decide to meet separately with the parties to manage any barriers to communication between them.
Emotional barriers
Mediations often cause intense emotions, especially when the conflict is highly personal, or one party believes that the other party is not bargaining in good faith.
Hormonal changes occur when people are under stress. Adrenaline production rises, and people experience a fight or flight reaction. Caucusing provides parties with a space to recover from any confronting behaviour. Caucuses also create a space for safe venting of intense emotion without negatively affecting the atmosphere of the joint session.
Information barriers
The mediator is sometimes given critical information unknown to the other side on a confidential basis in a caucus session.
The parties are often reluctant to share such information because if it is shared in advance of trial, the other party will have time to prepare a response to lessen the impact of the damaging evidence. However, a mediator is obliged to obtain express permission to share information imparted confidentially in a private session. A skilled mediator will understand and adhere to professional obligations and will not compromise confidentiality or impartiality.
Cultural barriers
Mediators need to identify and manage any perceived power imbalances. Racial, cultural, class, and other differences may lead some people to perceive themselves to be less powerful so they prefer private caucuses in a mediation. This is especially the case if a party’s identity is a central element in the mediation and the aggrieved party perceives (accurately or inaccurately) a lack of respect from the other party because of that identity.
For example, a group of students at Columbia University in 1996 went on a hunger strike and requested the university to create an ethnic studies department. The anger and mistrust on both sides made joint meetings problematic so caucus sessions were particularly useful.
Strategic barriers
Most parties are reluctant to share their true bottom line out of fear that this will be exploited by the opposing party. Caucus sessions may help mediators determine a zone of possible agreement.
The mediator may ask each party separately what they believe the other side might be willing to offer to settle the case. The two answers may assist the parties to come to a range within which the parties are comfortable they can settle.
The mediator may also ask a range a party might be willing to bargain in. Such “range bargaining” communicates a willingness to be flexible and begin defining the parameters of a zone of possible agreement.
Unrealistic expectations
Parties often have overly optimistic assessments of their best alternative to a negotiated agreement (BATNA). A skilled mediator can assess a party’s BATNA by exploring what will happen in Court if the dispute is not settled. Overconfidence is one of the many cognitive miscalibrations to which the human mind is prone; others include self-serving bias and status quo bias, which likewise can skew a party’s assessment of his or her BATNA.
A skilled mediator will be able to test the inferences that have led each party to their conclusions about their BATNAs. In joint sessions, parties usually exaggerate their likelihood of success and minimise the other party’s likelihood of winning.
Lawyers commonly seek mediation when they believe the other side, or even their own clients, have an overly optimistic view of the case because the mediator can persuade each side to be more realistic.
Obstacles to generating options
The parties may fear that sharing something in a joint session could reveal their openness to solutions that they wish to keep private.
Mediators may encourage brainstorming first in caucus sessions and then in joint session to gain the trust of the parties and reduce the risk that an idea advanced in the mediation could be viewed as biased.
Need for negotiation coaching
Mediators commonly engage in negotiation coaching because disparities in negotiating skill and mediation experience can create an unlevel playing field.
Negotiation coaching may encourage parties to explore each side’s interests instead of focusing solely on positions, help parties generate options, and decide offers and counteroffers.
Coaching is impossible in joint sessions because it could give the appearance of partiality, and because the parties are rarely truthful about their bargaining strategies.
Need for process management
Caucus sessions may be required if there is a party displaying disruptive behaviour. Joint sessions may be harder to manage in some circumstances.
If a party, or party’s lawyer, cannot pick up on social cues and is unable to control the impulse to talk throughout the mediation, a skilled mediator may decide to separate the parties to create some time and structure to the mediation.
Internal conflicts
Parties often need internal mediation within their own team. A party, and his or her lawyer, may have differing ideas about the best negotiation strategy. There may also be an uneasy alliance or a difference in dynamics within a group.
Parties can be transparent about internal disagreements in caucus sessions and then achieve unity in joint sessions. Separate meetings may also be needed to determine whether there is a potential conflict of interest.
Fear of losing face
In commercial disputes, some executives or employees may have similar interests with respect to outside constituencies (shareholders, suppliers, and customers) and with internal constituencies (company’s officers, employees and board of directors). They may be motivated to avoid letting them believe that they gave up or left money on the table.
An effective mediator can help maximise everyone’s interests. Often, the most successful way to assist the parties to reach a resolution and save face in a negotiation is for the final proposal to come from the mediator.
In a “mediator’s proposal” procedure, the parties are less likely to dismiss a proposal and the mediator can discuss the proposal confidentially with the parties. Even when a mediator’s proposal is not accepted by a party, these separate conversations can often lead the way to resolution.
Conclusion
Mediation caucusing adds value to mediation by overcoming various tactical and strategic barriers and impediments to settlement. Although the no-caucus model may be appropriate for certain types of mediation (and preferred by some mediators), often parties prefer the efficiency that can be achieved with caucusing. Numerous variations and hybrid mediation formats may also be useful.
How can you find out more?
At Norling Law, we are passionate about solving commercial disputes and legal issues. We offer professional, independent, and impartial mediation services to users in a dispute.
Norling Law supports mediation as an efficient way of solving legal issues. Especially if the parties to the dispute want a negotiated outcome that remains private and confidential and that puts a prompt end to the costs of having the dispute ongoing.
As mediators and representatives, we assist the users to a mediation achieve their priorities throughout the mediation process and enable them to make informed decisions regarding the resolution of the disputes they are involved in.
Our mediator, Wendy Alexander, regularly assists with the facilitation of settlements through mediation.
At Norling Law, we receive a large number of commercial disputes. Commercial disputes can be extremely stressful and can often be suitable for mediation. The parties may have been negotiating directly to reach a solution that would meet the interests of both parties. However, the parties often find it difficult to reach agreement.
Using mediation is an option that could potentially resolve commercial problems quickly and efficiently. Mediation is a low-cost option to consider before deciding on whether to litigate. Traditional mediation is usually a more expensive process as it involves the users meeting physically and there are resulting costs involved with travel and booking a neutral meeting room (or rooms). Sometimes traditional mediation might not be available at all for urgent matters.
Wendy can effectively assist users of mediation with her extensive experience as a commercial mediator. Wendy can help parties decide whether the parties’ objectives would be best served using joint sessions, caucusing, or a combination of these approaches. Wendy completed training at Program on Negotiation at Harvard Law School, USA and the Arbitrators and Mediators Institute of New Zealand (AMINZ). Wendy is also an Associate Member of AMINZ. This training complements the skills she already has in negotiation and dispute resolution.
Wendy often receives feedback from the mediation parties that they felt relaxed and in safe hands with the management of the dispute and that Wendy truly understood where they were coming from.
If Wendy’s expertise can be of assistance, the first step is to send us the details of the situation here.
Brent is the Director of Norling Law. He has a wealth of experience in the District Court, High Court, Court of Appeal and Supreme Court. Brent is passionate about negotiating favourable outcomes for his clients and able to implement this in his daily negotiations.
Wendy has over 20 years’ experience in civil litigation in New Zealand with a main focus on construction, insolvency and debt recovery and security enforcement.