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.
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.
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.
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.
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.