{3:00 minutes to read} In mediation, a caucus is a private meeting between one of the parties and the mediator. This is routinely done in commercial mediations, with the mediator shuttling back and forth between the two, or more, litigants who usually have lawyers with them in the sessions. However, in divorce mediation it is not so routine. In fact, in a recent informal survey I conducted, most of the divorce mediators I contacted reported that they rarely, if ever, caucus.
For the past 8-10 years I have had a “no caucus” rule in my own practice, and let my clients know in advance that I will not meet with, or speak to, either of them unless their spouse is present or on the call.
While each spouse might wish to meet or speak to me privately, neither wants his or her spouse to do so! And I have found that meeting privately with one spouse often creates more problems than it solves, such as:
- One spouse might have misunderstood something I said during a caucus and reported it back to the other spouse incorrectly. As a result, the spouse left out of the discussion may feel that I have sided with the other spouse.
- Adding an additional session or two in order to meet separately is going to increase the cost of mediation.
- Finally, it is often difficult for people to find the time to attend the additional mediation sessions.
All that said, ever since I attended a session on the benefits of caucusing at the Annual Conference for the New York State Council on Divorce Mediation, I have been wondering if I should allow a caucus as a way to:
- Overcome communication barriers;
- Address unrealistic expectations that could derail the process;
- Brainstorm ideas that might not be easy to express if the other spouse is in the room;
- Express any concerns one spouse might have about his or her safety and/or ability to speak freely in the presence of the other spouse.
My role is to help couples obtain a marital settlement agreement without becoming involved in a costly and hurtful court battle. If having one spouse, or both of them, meet with me privately can better allow me to achieve that goal, perhaps I should reconsider my “rule” against caucusing.
If anyone reading this has any thoughts on whether or not allowing a caucus in divorce mediation is a good idea, I would very much like to hear from you.
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All very well said, Dan. I do many kinds of mediation, not just family and divorce. Especially when there are lawyers — which as you say is often the case in business disputes or litigation — there’s a definite expectation of caucus. After spending some time together (whether that’s 20 mins or 5 hours), eventually people want to caucus. My preference is to stay in joint session. After all, I’m the only one in the room who can’t decide any outcomes, so if there’s something to say, parties should probably say it to one another. My rule of thumb is that I’ll go into caucus in any kind of mediation, but there should a *good reason* to do so. Garden variety “getting to the numbers” or “turning to something difficult to talk about” aren’t, in themselves, good enough reasons in my mind. The considerations you list, and many others, are factors that I use in determining if I think caucus, right then, is a good idea. And I think that just as parties should have control over the outcome, they should have a say and buy-in into the process. If anyone strongly wants a caucus, they get a caucus. Very often after a caucus, the party I just spoke to realizes, Oh, now that I think more about it, I *can* say in front of the other parties the things that we just talked about, but I have a more productive way to say it.
I do caucus for the exact reasons you listed at the end of your blog. I don’t have the parties come in separately, I usually ask them in the middle of the session when I feel it would be beneficial. I talk about caucusing during my consult and tell them it’s their ultimate choice whether we use it or not. It has always been successful and typically I don’t spend more than 15 minutes with each. One party waits outside my office while I meet with the other. I think a full session of caucusing would allow too much extra time for either party to start venting. That 30 minutes of caucusing allows the clients to move forward and not leave frustrated.
A caucus can be a good time to allow someone who has concerns about their safety to have a voice. Without that, the spouse who has been “beaten down” physically or emotionally has no alternative to adopt the “I will do whatever it takes to get out” mentality. They cannot advocate for themselves because they no longer have a voice. It has been silenced for a long time and recovering it will take some time away from the other party. When you see someone who just wants out, it might be good to caucus one at a time with each party, not to talk but listen to where each person sees themselves at this point in their lives.
Great question Dan. I still avoid routine or lengthy caucusing because two factors outweigh it:
the paranoia and the lost ability to learn to communicate. When I do caucus I keep it
brief, limited to addressing whatever provoked the need,
Best,
steve Abel
Thanks, Steve. I also agree that it is important to help couples communicate better, especially if they have children, since they will be in contact with each other for the rest of their lives.
Thanks for sharing, Heidi. You raise some very important points.
Thanks, Roseann. I think if I adopted a “regular caucus” rule in my practice I would do it the same way.
I agree, Chuck. Another issue I have found with a caucus is that it puts too much power in the hands of the mediator. That it, I know something the other side does not know and that can become problematic as the sessions progress.