The Initial Caucus and Subsequent Caucuses in Mediation

Category: Commercial Litigation and Arbitration

December 21, 2023

Depending on the preferences of the parties, the mediation can take different formats. As explained in a previous post, after the pre-mediation conference, the mediation may either begin with a joint session with all parties present or go straight into an initial caucus with just one party and the mediator. As each dispute is unique, the mediation session itself is flexible and can involve a mix of joint sessions and private, individual caucuses.

The initial caucus is the first confidential meeting between the mediator and one party and their counsel. An initial caucus allows the mediator to better understand the dynamic of the dispute, identify common interests between the parties, and determine how to approach a later joint session with both parties to foster open communication. The private nature of a caucus encourages the party to be open and honest which is an essential component of addressing the underlying issues that led to the dispute. This in turn helps the mediator guide the parties toward a mutually beneficial solution.

Typically, the goals of an initial caucus include:

Privately clarifying the major and minor issues at hand.
Providing a confidential environment for a party to vocalize their goals to the mediator.
Reviewing a party’s ideal resolutions and settlement proposals.
Clarifying any misunderstandings.
Building trust between the mediator and the participants so individuals can freely share their emotions and concerns without fear of judgment or consequences.
Discussing new facts relevant to the dispute.
Asking questions to determine each parties needs and goals which aids in finding mutually beneficial solutions.
Creating an opportunity for the mediator to manage expectations for the mediation process by explaining their role as a neutral facilitator and to provide helpful guidelines for the parties engaging in the mediation.

It is important for the individuals taking part in the caucus to consider what information they are okay with sharing with the other party and disclosing their confidentiality preferences to the mediator prior to the caucus taking place.

Subsequent caucuses can take place at any stage of the mediation after an initial caucus or after a joint session with both parties has occurred. A subsequent caucus can take place for a multitude of reasons including:

When there is a specific issue one party wants to privately discus with the mediator.
When there is a deadlock in negotiations.
To work through settlement options and/or concerns.
To further explore new solutions to the dispute or the consequences of the solutions proposed in the joint sessions.
To address concerns with the other party’s conduct during joint sessions that is impeding finding a mutually beneficial resolution.
When there is a new issue that impacts the dispute.
To discuss pursuing a new negotiation technique in a later joint session.

While some issues and conversations are better suited to a private caucus setting, minimizing joint sessions of both parties actively engaging in finding a solution can enhance feelings of distrust between adversaries. Therefore, as the goal of mediation is for the parties to come to a mutually beneficial resolution, it is critical for the parties to build trust through communication in joint sessions to mitigate this potential issue arising from private caucuses.

To read how Castaybert PLLC can assist you with mediation, click here.