Mediation represents an excellent opportunity for parties in a divorce to settle their issues using negotiation, rather than litigation in front of the family or supreme courts. In the right circumstances, working with a divorce mediator such as myself could also mean that you get to maintain more control over what happens with your divorce, as you can come to an agreement that can be drafted and sent to the courts for approval. However, there are many different kinds of mediation available in the world of family law, and it’s important to decide which option is right for you before you get started. My last blog was about the positives involving caucusing in divorce mediation. In this article I will point out some of the counter considerations.
I, and other divorce mediators like myself, can offer clients the opportunity for caucusing in mediation, in situations where it may be appropriate. In divorce mediation with caucus sessions, each party will have the chance to take a moment away from the joint session so that they can discuss an issue with their divorce mediator in private. Crucially, this isn’t an opportunity for either party to get exceptional legal help from their mediator or guidance on what to do next. Instead, caucusing moments can be used to gain clarity on a situation, or discuss what might be possible if a specific negotiation path is suggested.
Usually, when clients come to me in search of an experienced divorce mediator, they’re looking for someone to help them with their negotiation that they both feel as though they can trust. For the most part, to this point, I and the people that I work with have engaged in mediation without caucusing. I have felt that this keeps all information out and in the open, rather than causing one party to worry about what the other says behind closed doors. Mediation often works best when both parties feel comfortable with the idea that their mediator is neutral and objective. However, if both parties in the divorce are comfortable with the idea of caucusing, then the solution can offer a range of benefits too.
Considering the Option of Caucus Meetings in Mediation
As Steven Leigh notes in this caucusing article, the option for caucus was originally introduced into the mediation environment as a way of giving parties the option to take some time out from the joint conversation and regain their bearings. During a caucus, the party in question can meet with their divorce mediators and reflect on their short-term and long-term goals. The party also has the option to ask the mediator what would happen if they suggested a certain strategy for moving forward. This can help to ensure that clients don’t show their hand too early or demonstrate weakness or uncertainty in front of the other party.
However, mediation is all about bringing parties together in a neutral environment where they can discuss their issues safely, without fear of judgment. In some cases, when caucusing is allowed, one party or the other might feel as though the other person is getting unfair support behind closed doors. Although this isn’t the case, if any party in a mediation session begins to mistrust their mediator, or feel as though the experience isn’t objective, then the whole process can suffer.
The Balance SMB refers to a caucus as a kind of “time out” for mediation sessions, where people can cool off and take a moment to clear their mind before they continue with the negotiation. These sessions can also be valuable opportunities for parties to sound off and air their frustrations about the other party without causing additional problems in the relationship or discussion. However, any private conversation between a party and a mediator can sometimes raise feelings of suspicion and paranoia in other parties – particularly during a divorce case, where emotions are already running high. There is also the consideration about what information should be shared that was discussed in a private session and what should not be.
Is Caucusing Always Necessary in Mediation?
In any mediation session that I host with my clients, I always explain that everything step that we take in the divorce process will be done with the full approval of both parties. Nothing happens behind the scenes – even in cases where caucusing takes place. It will be discussed, agreed upon, and understood, prior to engaging in caucus sessions,whether or not the parties agree that information shared in private sessions will be kept confidential between each other or not. I explain this in an attempt to help people understand what my role is as a divorce mediator. I’m not there to act on the behalf of one side or the other. Instead, I behave as a neutral party, available to assist with dispute resolution for both of the parties involved, until they’re able to negotiate on an agreeable outcome for their divorce, child custody agreement, support contract, or separation agreement.
When they understand my position as a neural source of support, some parties feel comfortable asking for caucusing sessions for them and their partner. These people often feel that it’s essential to have a way that they can separate themselves from the divorce process for a moment and cool down when conversations get heated. However, other people will feel uncomfortable about the concept of using caucusing for any part of the meditation experience. For these people, the best option may to be keep everything out in the open – regardless of whether or not that means that emotions are aired in front of the other party. I offer my clients both options so that they have the freedom to choose the meditation strategy that works best for them. As mediate.com suggests, caucusing can provide a productive pause in the meditation session at times – but it isn’t always right for everyone.
If my clients believe that the transparency and neutrality of their meditation experience may be damaged by caucusing, then I will often recommend continuing the mediation sessions without caucus sessions. In this case, the parties will still be able to use their review attorneys as sources of outside advice, assistance, and guidance when they need to discuss their options or sound off about ideas. I always recommend that my clients use review attorneys alongside mediation, although not everyone will take this advice.
Choosing your Mediation Strategy
Although there are many different kinds of mediation available, these negotiation sessions always work best when both parties feel comfortable with the process and feel as though they can trust the mediator that they’re working with. If the idea of caucusing harms that feeling of trust in any way, or causes suspicion among the parties, then it’s often best to avoid this option entirely.
If you would like to discuss your mediation options or explore the possibilities available to you for your divorce, contact my office today for your free initial consultation of up to 30 minutes. Even if caucusing is eventually utilized, the initial consultation for couples that wish to use me as their divorce mediator will be together. You can reach me at 516-333-6555.