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. Continue reading