Caucusing in mediation

Abstract

Mediation is a process where the parties to a dispute are assisted by somebody external to the dispute, the mediator who aids the disputants in various ways. Mediators are trained to use many skills and techniques and must utilize the right skill or technique at the right time. Mediators are generally advised to follow the physicians’ core principle – first do no harm. Hence the mediator must at all costs avoid making use of techniques which instead of helping the disputants, interferes with the process in a way that jeopardizes the whole mediation process. A ‘technique’ means a specific task, action or systematic procedure or procedures used by the mediator at a certain point in time of the mediation proceedings. Techniques are sometimes referred to as interventions. One of the techniques utilized by the mediators is the ‘caucus’ - which essentially is a private meeting held by the mediator with the parties separately where sometimes confidential conversations are held. The joint session is interrupted and the parties are physically separated from each other. One must keep in mind that the caucus is not an instrument whereby the mediator tries to impose his/her will on the parties but on the other hand the caucus is one of the various tools used by the mediators to serve the process’s objectives and that is to facilitate communication between the parties, assist in identifiying issues and promote a mutually acceptable agreement. This study represents a critical examination of these private sessions (caucuses), and tries to add to the relatively small amount of published research about the efficacy of caucusing by focusing on its’ use in a family mediation context. Caucusing is used more frequently in commercial mediation however this dissertation will deal with the use of the private sessions in the family fora. A qualitative approach was adopted, based on secondary data sources and ‘elite’ interviews with five court appointed mediators practicing in the family context. Interviews held with the mediators were semi-structured interviews which allowed the participants to express their views in their own terms and hence provide reliable and qualitative data. Although there are no fixed rules as to when mediators caucus, it is a fact that caucusing is considered a necessary tool which is used by the mediators when parties are usually stuck in the joint session. Mediators prefer the joint meetings however there is no reluctance or fear to use the caucus method when necessary.