I recently had a discussion with a group of mediators who felt that caucusing was a good intervention. Since I can rarely think of a good reason to caucus, I attempted to investigate what would lead them to decide to caucus and whether their reasons made sense to me. One person said that she caucused when she thought the position of one party was unreasonable and she wanted to understand more about it.
The more I heard, the more I realized that in many cases the reason for caucusing is that the mediator is feeling drawn to the position of one of the parties and either wants to find a way to understand the other party’s perspective better or to push the party to change a position. In my view, neither of these reasons is a good one.
In the first case, if the mediator is feeling drawn to the position of one of the parties, the mediator would be most helpful by reflecting upon what is drawing the mediator to the position of the party and whether that is a result of mediator bias or something specific that the party said or did not say. If the party was not convincing in presenting his point of view, it will not only be the mediator who is unconvinced; more importantly, it will be the other party. If so, the mediator will be performing a service to the mediation by identifying what is unconvincing about the position of one party and asking a question that will help both parties focus on that area of discussion. Of course, the mediator should not say that any part of the position is unconvincing; instead, the mediator can simply invite discussion on that area and see what shakes out. Most likely, the discussion will be highly profitable and much more valuable than doing it in caucus.
The second case is much like the first case. If the mediator is feeling the need to push a party, that is a warning sign to the mediator that his neutrality is failing. The mediator should reflect upon what is causing him to feel a lack of neutrality and whether he can overcome it by identifying his biases or assumptions. If, however, the mediator feels that one party simply has not made a clear and convincing case for his position, the mediator can again invite discussion in the room on the area of weakness, without identifying why the mediator is focusing on that area. Again, that discussion is likely to yield greater clarity regarding the positions of both parties as well as a productive and more realistic discussion of any weaknesses in a party’s position.
The beauty of this approach is that the mediator can avoid judging the matter, and can allow the parties to find their own comfort zone. Doing so, is most likely to yield an agreement that both parties are comfortable with and that will be a lasting one.