Article about the Understanding-based model in the Consumer Attorneys Association of Los Angeles Advocate

To Caucus Or Not To Caucus – That Is the Question by Gail Killefer: A mediation model in which the parties work in a joint session without caucusing

In July 2012,  Gary J. Friedman of the Center for Understanding in Conflict (Mill Valley, California), presented “To caucus or not to caucus” at an advanced mediation  training for the  Mediation Panel of the U.S. District Court, Central District of California. In this  interactive training, Mr. Friedman demonstrated the  benefits of working with the  parties in joint  session.

Friedman has developed a model of mediation in which the  parties work in a joint session  – without caucusing – in order to gain  a fuller understanding of the  dispute directly from one another and  actively participate in the resolution of their differences. He has used this model in over a thousand mediations in the last two decades in the areas of intellectual property, real estate, corporate, personnel, partnership formations and  dissolutions – topics  with which the  panel mediators are familiar.

Friedman’s use of the  joint  session and his reluctance to “caucus” – or to meet separately with one side and its lawyer – was thought-provoking and controversial. The response of the  audience was as varied as the  backgrounds and expertise of the panel themselves.

The Audience

Each  year, the  U.S. District Court for the Central District of California hosts an advanced mediation training for the attorney mediators who volunteer to serve on the Court Mediation Panel.

The  panel consists of experienced attorney mediators. They view the Court’s annual training as an opportunity not only to learn about cutting edge topics in mediation, but as an enjoyable day spent with interesting colleagues.

The Central District’s Mediation Panel consists of nearly 200 attorneys with a wide variety of practices. Some panel members are full-time neutrals; some are full-time litigators with mediation training and experience; and  some  combine a litigation and mediation practice.

Some  panel members have  a solo practice; others are members of small, medium or large firms; or they  work under the  umbrella of a mediation provider such as JAMS or ADR Services. For cases assigned by the  Court’s ADR Program, all panel mediators volunteer their preparation time and the first three hours of a mediation session.

To be appointed to the  Mediation Panel by the Court, attorneys must meet strict qualification standards: they  must  be a member in good standing of the  Bar of U.S. District Court, Central District of California; they must have at least 10 years legal practice experience; they  must have substantial experience with or knowledge of civil litigation in federal court; and they must possess significant expertise in one  or more designated areas of law. The panel includes attorneys with substantive experience in 22 areas of law. Panel mediators must also complete a court-conducted or court-approved training course in mediation.

From this diverse talent pool, 60 panel mediators participated in the training  “To caucus or not to caucus.”

Theory Underlying the “Understanding- based” Model

Friedman’s approach to mediation is focused on the parties and their understanding of the  conflict. In the  under-standing-based approach to mediation, the parties stay in joint session and work through the conflict to reach a resolution. This approach gives the parties and  the lawyers an opportunity to truly “hear” the other side.  It also gives the parties more control and more responsibility for the decision-making that takes  place  – and  for finding a resolution.

To prepare for the  training, Friedman asked  the  participants to read a chapter in his book, written with Jack Himmelstein and published with the  ABA and Harvard’s Program on Negotiation, Challenging Conflict, Mediation through Understanding. The chapter, entitled “Love, Death, and Money: To Caucus or Not to Caucus,” offers an example of a mediation  using the “Understanding-based” model – and  a lawyer’s typical resistance to that model.

At the  start of the mediation described in the  chapter, a lawyer to one of the  parties resisted the  mediator’s preference to stay in joint session. She wanted the  mediator to meet separately with her and her client and for the mediator to give them, in confidence, his opinion as to what  would  happen if the  case proceeded in court. She was also concerned that once the  parties began discussing a monetary settlement, the  other party would  leave  in anger. She hoped the mediator would facilitate the  negotiation by shuttling between the  two parties.

Caucus model

Many  lawyers are – and  most  of the participants at the  start of the  training were more comfortable with the  caucus  model, in which the  mediator shuttles back and forth between rooms, meeting with the  par- ties separately. The  mediator can confiden- tially discuss  the  strengths and  weaknesses of the  case. This  approach allows the mediator to build rapport with each side and to coach each side in the negotiation.

Keeping the parties separated also relieves everyone of the discomfort of conflict.

Friedman pointed out that this  traditional adversarial setting draws the  focus away from the  parties and  gives authority to the  mediator. The mediator becomes the person most knowledgeable about the conflict because he or she has solicited information from each side  and communicated selectively to the other. The mediator will often predict a realistic settlement range or number and work towards bringing each side to that number, possibly manipulating the parties – or making the parties feel manipulated – to move  them to the  mediator’s number.

The Presentation

Friedman led  the  audience through the five stages of the Understanding-based model of mediation: 1) contracting; 2) defining the problem; 3) working through the conflict; 4) developing and evaluating options; and  5) concluding agreement. He then used role-play techniques to engage the  audience and demonstrate the principles he described.

At the beginning of the training, Friedman stood in a large paneled room at the center top of a horseshoe formation of chairs. As he  talked and solicited responses from the audience, he wrote on a large pad, taping finished pages to the  front wall. For the role play, which involved a tense relationship between a U.S. manufacturer of a medical device and its distributor in India, the audience moved their chairs into smaller groups composed of one mediator, two lawyers and  two clients. The  scripts for the role plays shared common facts but  each included unique facts supporting the  individual character’s perspective of the dispute.

The  audience was very much “with” Friedman while listening to the  need for a contracting phase – engaging the  parties, negotiating the  ground rules of the mediation, explaining the  process and  clarifying the roles of the participants in the mediation.

Friedman explained that in the  second  stage  of the  mediation, defining the problem, he would  first turn to the lawyers and ask them to explain the legal aspects of the case. After the lawyers explained their legal positions, he asked the parties to explain their personal interest in the  dispute and how the dispute arose. Throughout, Friedman “looped” the  speaker, meaning that he actively  confirmed his understanding of what the speaker said.  The speaker responded affirmatively or clarified or restated his or her statements.

In discussing the  third stage  of mediation, “working through  the  conflict,” some participants in the  audience grew increasingly skeptical and resistant when they realized that the mediator in their role play was not  going to break into separate caucuses. They  resisted raising difficult issues in a joint  session, issues they were more comfortable discussing in caucus.

As the  role-play groups experienced difficulties, Friedman asked  participants to step forward to the center of the room to replay their experience in a fish bowl setting.  As they repeated their dialogue, Friedman coached them, modeled a different approach and encouraged them to experiment with techniques designed to reach a deeper understanding between the parties.

As the afternoon went on, the push-back  became more spirited. When Friedman suggested that the mediator in the  role play ask each lawyer to explain in joint session the  risks of going forward with his or her case, it became clear that this technique was foreign to the  experience  of most  of the mediators. Some mediators began to grill him,  pressing for an admission that certain issues can only be productively discussed in caucus.  In some instances, the comments were down- right hostile. Friedman had stepped into the  lion’s den but, from all appearances, he relished the  challenge.

Friedman persevered, demonstrating at each stage  of a mediation how the  parties and lawyers could be kept in one room and work through the conflict. For some, seeing how Mr. Friedman worked created several “aha”  moments. They were moved by watching a mediator work with the parties to deepen their understanding of a dispute and, as a result, shifting the way the  parties viewed  each other and the conflict  – a transformative experience.

The  feedback after the  training was mostly  positive. Those mediators who were skeptical of the  “understanding- based” model appreciated and enjoyed the engaged, spirited, and  provocative conversation. Those who were not sold on the techniques found them interesting. Even those mediators who were at times hostile to Friedman’s approach appreciated his refusal to take offense, his humor, and his passion for his topic.

One  participant reflected after the training that lawyers often tell mediators how they want a mediation session conducted – and that the caucus format is the customary process. In this process, the lawyers seem to believe they have greater control over the conversation and work to get the mediator “on their side.”  This participant said many commercial mediators are concerned about adopting an approach which alienates lawyers – whom  they  perceive as their clients. And the panel members with litigation practices resisted a technique they believed to be unrealistic or that could compromise their cases.

Based on e-mails received from participants after the  training, some accepted the idea that the “Understanding-based” model could work for cases that involved relationship-oriented disputes. But they could not see themselves using a joint session in a case involving distributive bargaining, especially when the defendant is an insurance adjuster rather than an aggrieved individual.

Benefits of the Joint Session

So, what are the benefits of the joint session?  Friedman’s model views the  parties working through conflict together as an end in itself.  The joint session shifts the authority to the parties: they  know what the  mediator knows, which gives them more control over the process. The parties must participate in the discussion and take responsibility for the resolution. Friedman believes that when the parties develop an understanding of each other’s interests in the dispute, they become open to more creative solutions that benefit them both. The  process may strengthen the relationship between the parties. At the very least, it will strengthen the  parties’ commitment to the resolution.

I silently  thanked Mr. Friedman this week while mediating an interpleader action involving individuals with competing claims to life insurance proceeds. After reading the court file and meeting with the parties, I “knew” how the  funds should be allocated. But, thinking of Friedman’s model, I did not separate the parties in order to suggest “my” number in caucus.

Instead, I kept  the  parties together and had  them share their stories about the deceased, their relationship to him, and how they viewed the life insurance policy. After two hours of discussion, some of which was emotional and uncomfortable, one party blurted out the allocation that she considered fair – and, as it so happened, it was “my” number. The other party nodded her head in agreement; the case settled. By taking the time to work through the conflict with each other, the parties reached the allocation in a manner that gave them more certainty, more satisfaction, and an opportunity to reconcile with one another. The mediation took extra time, but it was worth it.

Conclusion

At the very least, the debate among the Central District’s Panel Mediators during last summer’s advanced mediation training was stimulating and interesting. Friedman offered a new approach to mediation with insights and  new techniques. He made some converts; others were not  sold on his tech- niques but found the  material interesting. Most participants at least tried to imagine drawing on the  new techniques and  adapt- ing them to future mediations. The  respons- es to Friedman’s presentation were varied, thoughtful, and  interesting – just like the Central District’s Mediation Panel itself.

Gail Killefer is the ADR Program Director for the U.S. District Court, Central District of California. Before joining the Court in August 2010, she had a private law and mediation practice in San Francisco. She served as an Assistant United States Attorney in San Francisco from 1989 to 2001. Before 1989, she served as a Trial Attorney with the U.S. Department of Justice, Torts Branch, in Washington, D.C., and as a law clerk to the Honorable Barrington  D. Parker.  She received a B.A. from Stanford University and a J.D. from Vermont Law School.