Caucusing (meeting separately with each party) is a common mediation technique, especially in business mediations that are, or appear to be, mostly about money. It is less common in family and divorce mediations.
Caucus in Divorce Mediation?
I rarely caucus in divorce mediation. Occasionally I will meet with each party individually when we are first getting started if one or both of the spouses really wants such a private meeting. I view these sessions as a way to help each party become more comfortable in engaging in the upcoming joint mediation process rather than as the start of the mediation itself.
I recently finished reading an excellent mediation book: Challenging Conflict – Mediation Through Understanding by Gary Friedman and Jack Himmelstein. The authors are strong proponents of having the parties work together in joint mediation sessions. They don’t advocate a caucus in divorce mediation or even in business mediation.
Underlying their approach to mediation are several core principles including:
- the power of understanding rather than coercion or persuasion is the best driver of the mediation process;
- the primary responsibility for whether and how the dispute is resolved should be with the parties; and
- the parties are best served by working together and making decisions together.
It’s impossible to do justice to such a rich book in a short summary, but in essence they advocate for a mediation process that moves in the direction of enabling each party to come to a deep understanding and appreciation of their own and the other party’s concerns and interests underlying the dispute. This then enables the parties to work together creatively to develop solutions that will work for everyone.
The authors indicate these potential problems with using a caucus in divorce mediation (or other mediations):
- the mediator becomes the only one in the mediation with access to all the relevant information;
- it creates the impression that the mediator is taking responsibility for the parties reaching an agreement;
- the mediator gains a privileged position and may use this to manipulate the parties towards making a deal;
- the parties may feel that they have been manipulated in the direction of a settlement by the mediator;
- if attorneys are involved in the mediation, they are more likely to be able to manipulate the mediator;
- the parties are deprived of some amount of understanding about each other that could perhaps facilitate resolution; and
- the existing emotional / human polarization between the parties isn’t given a chance to “discharge.”
One of the main reasons I infrequently caucus in divorce mediation is because I find it to be much more efficient (we make more progress faster) when the spouses are together. I’m also aware that the spouses know each other very well and at some point were able to communicate with each other effectively. I therefore know that it’s well within the realm of possibility to assist them in hearing and understanding each other once again.
The authors note that a main reason many mediators caucus is because they feel more comfortable doing so. Much of the actual experience of conflict is dampened through caucusing. “Many mediators, and lawyers, may see their role as managing conflict rather than helping parties go through it. For us (the authors), supporting the parties in going through the conflict together is precisely the challenge.” (page 194)
None of this is to say that a caucus in divorce mediation is never appropriate.
I think that one of the interesting things about mediating divorces is that it can range from helping one couple with no interest in any further communication to helping another couple who will continue to be in a close relationship due to the need to co-parent their minor children. In both cases, I usually find it works best to conduct all of the mediation in joint sessions. The authors view going through conflict together as an end in itself and I agree with this empowering aim.