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Caucus Part 2

Caucus Part 2 By Gary Shaffer{4:06 minutes to read} My last blog addressed caucusing basics. I thought it might be interesting to expand the topic a bit to include some variations. As I previously wrote, non-divorce mediations are largely conducted through caucusing, with the mediator speaking to each side separately for much of the mediation. Divorce mediations typically are not conducted in this manner. But these are generalities; there is no one-size-fits-all.

  1. Counsel-to-Counsel Caucus (aka Get Those Clients Outta Here!)

Sometimes it can be useful to send the attorneys on a walk without the intrusion of the mediator or the parties. Counsel may have a prior relationship that enables them to talk outside the hearing of their clients, in a way that permits cutting through some of the formalities or concerns they would have if clients were present. I have successfully used this approach even when the lawyers did not previously know each other but developed a rapport during the course of the mediation. 

  1. Party-to-Party Caucus (aka Get Those Lawyers Outta Here!)

Business people in particular can be good at cutting through what they see as BS. In joint sessions it may become apparent that the opposing sides – the clients, not the attorneys – are speaking a language they each understand. While the attorneys may quite appropriately be treading lightly, the business people are thinking 5 steps ahead as to how they might handle the business side in a way that ties things up. This is especially true if there is a possibility of the parties continuing to do business together.

  1. Mediator-to-Counsel Caucus (aka #1 above)

Similar to lawyers talking separately to each other, it can sometimes be useful for the mediator to speak separately to a lawyer outside the hearing of the client(s). This can be initiated by either the lawyer or the mediator. Sometimes the mediator can tell that the lawyer or the client is holding back – for example, the lawyer may be hesitant to tell a client that a case suffers from certain flaws. It may be helpful for the lawyer to discuss that with the mediator and work out a strategy for addressing who says what. This often relates to dollar issues, and it may be more useful for the mediator to address a specific demand or offer with the client while the attorney takes what appears to be a somewhat passive position.

  1. Mediator-to-Party Caucus (aka #2 above)

This is the least likely caucus variation. It can result from the Mediator-to-Counsel Caucus and can be useful in the right situation. Occasionally, a lawyer says to me (somewhat pleadingly), “Listen, maybe you can speak to my client…” and it turns out that the lawyer thinks the conversation would best be done without the attorney in the room.

Mediation is an art more than a science, and therefore the caucusing variations described here are appropriate only when… they are appropriate. This may not be helpful in the abstract, but whether as a party, a lawyer or a mediator, keep in mind that you are free to try different things. As always, these techniques will only work if the mediator has developed a trusting relationship with both counsel and the client.

Gary ShafferGary Shaffer
Shaffer Mediation

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An honors graduate of Harvard University and the Cardozo Law School of Yeshiva University, where he also served on the Law Review, Gary brings more than 30 years of litigation and negotiation experience to his practice as a mediator. He has successfully negotiated and mediated resolutions in family matters, employment cases, commercial disputes, personal injury cases, and major civil rights matters.

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