In the world of divorce and family law issues, there are many different types of dispute resolution available, from classic negotiations, collaborative law, litigation, and of course – mediation. When a couple opts for mediation as a way of settling their divorce concerns outside of the courtroom, they generally come together as two opposing parties with one neutral party in the middle – the mediator. However, some people perform the mediation process differently – offering their clients the opportunity of “caucusing”. In caucus-style mediation, the mediator provides separate meetings for both parties involved in the divorce – while the other party is absent. Some professionals use this method once or twice during the mediation to help resolve significant issues, whereas others maintain the caucus format throughout the full mediation, shuttling backwards and forwards between clients.
For the most part, I have not employed caucus mediation (although in next week’s blog I will discuss times when mediation by caucus might be a good idea), but I do believe it can have some utility to handle certain situations which can arise with mediating couples. This week’s blog will outline the reasons I initially approach a divorce mediation without the thought we will have separate caucus sessions to work through the issues that need to be settled in a legal separation or divorce mediation. In my mediation sessions, I explain that everything is done with reference to both parties, both parents, or both the husband and wife – together. This helps the people I work with to see me for what I am – a neutral party within their dispute resolution that is there to help them iron out an agreement which can be used to make a binding legal contract. In most instances (we can mediate issues other than just divorce, such as custody, support, etc.) that contract is a settlement agreement that can allow them to get an uncontested divorce either right away or at some future date. While there may be instances wherein caucusing is the right move (something I’ll address in my next blog), I am wary to employ the caucus approach at least initially.
Caucusing Can Raise Issues
Perhaps the most significant problem with caucusing is that it removes the intimacy from the negotiation technique. Rather than allowing for both of the parties to be directly involved in the resolution of their various arguments and concerns, the mediator is forced to run back and forth conveying offers and suggestions. There’s no room here to discuss matters thoroughly and examine the different opportunities for negotiation – which means that by the end of the mediation, one or both spouses might leave with questions. At the same time, the caucus method of mediation can shift the position of the mediator so that he or she no longer appears to be neutral within the case. When all of the conversation with the other side of the divorce takes place out of sight of the other client, most clients can begin to feel as though the mediator and ex-spouse are plotting behind their back. Even if this isn’t true, it’s worth noting that divorce and family law issues are emotional and can prompt feelings of paranoia and anger.
Another mediator, Laurie Israel, in a 2010 article in Mediate.com points out problems of mediation by caucus, which I believe are very good points. Some of these issues are as follows:
- In caucus-based mediation, the divorce mediators are the only one who have access to all the pieces of information within a case. This means that they’re constantly running backwards and forwards trying to relay accurate data.
- This form of mediation also places a lot of power into the hands of the mediator, as it indicates that they are taking responsibility for the clients meeting an agreement. By the end of a settlement, parties may feel as though they have been manipulated into a decision because they don’t have chance to voice their own opinions in a free and open environment.
- In caucus-based mediation, the individual nature removes the depth from the discussion that might deliver some amount of understanding and insight into each individual that may help to facilitate resolution. There’s no human connection.
Limiting the Transparency of Mediation
When mediators choose to allow, or even promote mediation by caucus, they can either use it as an on-going strategy, or implement it into a case temporarily as part of a strategic intervention designed to give clients a chance to vent in extremely high-conflict cases. While mediation isn’t generally designed as a place for spouses to vent their frustrations at each other, this doesn’t necessarily mean that the first hint of conflict should cause a mediator to turn to caucusing. Many mediators, including myself, believe that caucusing is risky, and can give mediators too much power over defining issues and interpreting messages – a process which should be left to the parties involved. By holding conversations with each client in different rooms, the caucusing method removes the transparency involved in mediation, corrupting the flow of thoughts and considerations that is essential to dispute resolution.
In my opinion, mediation is all about neutrality. I offer a connected, but highly neutral location in which both clients can feel safe, and heard. If there’s any chance that one spouse may feel as though the mediator is biased against them, then the process might be jeopardized. In most cases, when private conversations exist between one party and a mediator, the danger is that one might be thinking that neutrality has been lost, which overshadows the ability to come to a resolution that both parties are comfortable with.
When Mediation Works Best
I believe that mediation works best when both parties feel as though they are getting the same amount of neutral interaction with the mediator. While mediators can always work to give clients the same amount of time in caucus-based mediation, the secretive nature of private sessions robs the neutrality from the situation and often leaves clients feeling suspicious and cheated. This means that mediation no longer works to prevent escalation of conflict, but instead becomes another concern in a growing list of emotional issues that each party in a divorce is dealing with. Mediation is better suited to situations wherein collaboration, compromise, and negotiation can be emphasized – and these things will always be best represented in a joint, collaborative situation. Commonly, when caucusing is allowed to interfere with the natural flow of mediation and negotiation techniques, clients may end up feeling threatened not only by the other party, but also wondering whether they can trust their mediator to offer them the same level of care. After all, it’s impossible to know what goes on behind closed doors.
As I mentioned previously, while there may be some instances in which caucusing is necessary, I personally believe that mediation works best in a joint approach to dispute resolution, which promotes greater empathy and understanding on the behalf of both parties, thereby furthering the goal of exploring options for mutual agreements. But, please read my next blog where we will explore when to use mediation by caucus.
To learn more about mediation and the other options available to you in divorce, please contact me, Mr. Darren M. Shapiro. You can schedule a free half-hour consultation with your spouse, and begin the mediation process as soon as you like. For those seeking the advice and representation of an attorney, individuals can schedule their free initial consultation by themselves. Contact me via our online form, or over the phone at 516-333-6555. It would be my pleasure to see if we can help.