Stage Four: The Caucus

At this point in the session, most mediators take advantage of one of mediation’s truly distinctive features: the private caucus. During the private caucus, the mediator will ask questions, share impressions of the strengths and weaknesses of both sides’ arguments, and kick around settlement ideas, all with an eye towards bringing the parties closer to a compromise.

1. Purpose and Procedure

The caucus is a private meeting between you and the mediator, during which the mediator can talk with you more informally and candidly than if the other side were present. Some mediators consider it “the guts” of the mediation process, because they use it to do most of the business of working out a settlement. During the caucus with each side, the mediator may discuss the strengths and weaknesses of your position and the other party’s position, and float new ideas for settlement. The mediator may caucus with each of the parties just once, or several times back and forth.

As discussed earlier, most mediators and mediation services use caucuses, but there are notable exceptions. These are principally in divorce and some community mediations, on the theory that the dispu­tants are likely to be so distrustful of each other that it is better to keep them together so they always know what each is saying to the mediator. Some mediators don’t use caucuses to mediate any dispute in which the parties will have an ongoing relationship; they believe that staying in joint session provides opportunities to improve communication, which will prove valuable long after the mediation ends.

To begin caucusing, the mediator will ask one party to leave the room and wait in the reception area while the mediator meets alone with the other party. Or, the mediator may ask one party to move into a second conference room, and the mediator will shuttle back and forth from one room to the other, meeting separately with each side.

During the caucus, your mediator may assume a more relaxed posture—and may step over the line of strict impartiality just a little, to convey concern about your situation and hope that a solution can be found. By openly empathizing with the parties, the mediator continues to win their trust and maintain control over the mediation.

Neighbor Dispute: Mediator to Ms. Ferraro: “Well, I can see you’ve been under tremendous stress because of this situation. I really hope we can find a positive way to solve this problem so that you can get some sleep.”

2. Confidentiality

Generally, most mediators will not repeat anything you say in caucus to the other side unless you expressly okay it. For example, if the mediator is using the caucus to try to help you craft a compromise offer, the background chat won’t be communicated to the other side, but—with your permission—the offer will be. If the mediator has not made this policy clear in the opening statement or when the first caucus begins, ask what the policy will be so you are clear about it before the caucus begins. (Some mediators take the opposite approach—they assume that they can share anything you say with the other side, unless you ex­pressly request confidentiality—so be sure to check on your mediator’s policy.)

Typically, the mediator will caucus with each side several times during the course of mediation. In a relatively simple two-party media- tion—for example, involving an auto accident or dispute between two business people—it would be typical for a mediator to caucus two or three times with each side during a half-day mediation. A mediation that lasts a full day may involve three to five caucuses with each side. But there is no rule on this. The frequency of caucusing depends entirely on the mediator’s style and assessment of whether the caucusing process is moving the parties closer to settlement.

3. The Mediator's Strategy

During the caucus, the mediator will probably challenge your attitudes and positions, probe to find additional facts, and seek out your underly­ing interests and your bottom line.

The mediator will also try to translate what the other side is trying to tell you into language you can more easily understand. For example, if the other party spoke mostly in jargon or euphemisms, the mediator during caucus may tell you in plain words what the person seems to be saying.

Business Ownership Dispute: Mediator, in caucus, to Ted: “Ted, I think what I’ve heard Mike say this morning is that he doesn’t think it’s possible for him to remain in business with you any longer, but he is willing to sell his share in the business, or buy yours, for a reasonable price.”

Here are some of the strategies mediators commonly use to move the parties closer to a settlement.

a. Challenging Your Position

To help you arrive at a solution to your dispute, your mediator has to get both parties to change their positions (or simply to see that their positions don’t really conflict). One way to do this is to question the correctness or wisdom of the position you expressed in your opening statement. The mediator’s questions will be designed to make you wonder if you are being realistic about your case. For example:

• “Do you think someone who didn’t know you would think that you were entirely without fault in this dispute?”

• “If this case went to trial, is it realistic to think a jury would find the other side 100% at fault?”

• (To Ms. Ferraro in the neighbor dispute): “I know Mr. Rafferty was not living behind you when you bought your house, but did you know the house behind you had an outdoor pool fairly near your house?”

• (To Mr. Nehru in the lease dispute): “According to the strict word­ing of the lease you signed for this office space, doesn’t the landlord get to decide how much of the security deposit should be returned?”

• (To Mike in the business ownership dispute): “I know you feel Ted’s involvement has prevented the pizza restaurant from being success­ful.

Don’t get too upset if the mediator challenges your version of events or your position. The other party is surely getting the same treatment in the conference room next door. And the answers you and the other party give to the mediator’s questions may help you to evaluate your case more realistically—and move toward settlement.

b. Giving You a Reality Check

Your mediator may also play the “agent of reality.” In this role, the mediator will point out the likely consequences of holding firm to your present position. Mediators usually do this by asking questions rather than making statements. Expect to hear questions like these:

• “If the other side were to agree to your last proposal, how workable do you think that plan would be in the long run?”

• “How much time and money are you likely to spend in this dispute if you can’t settle it in mediation?”

• (To Mr. Nehru in the lease dispute): “What happens when custom­ers, job applicants, and others go to your former office address and can’t find you?”

• (To Ms. Ferraro in the neighbor dispute): “If Mr. Rafferty sold his house tomorrow, do you think the new owners might use their pool on warm evenings?”

Again, one possible response to your mediator’s efforts to give a reality check is to get angry. After all, the mediator is asking you ques­tions you don’t want to answer or giving you feedback you don’t want to hear. A more positive response is to accept and take advantage of your mediator’s role. After all, the mediator has loads more experience in settling disputes than you do, and this feedback, whether in the form of questions or advice, is likely to be sensible.

One good approach is to come right out and ask your mediator for a reality check: “Am I on solid ground here? Is there some aspect of this problem I’m not seeing clearly?”

c. Creating Settlement Options

An important part of the mediator’s job is to help you think of new ways to resolve your dispute.

• “How would you really like to see this dispute resolved, from a practical perspective?”

• “If you were in the other person’s shoes, what sort of solution would you propose?”

• “What are some ways of settling this dispute that would be fair to you and to the other side?”

• “Can you think of a solution to which you and the other side might agree?”

• [To Ted in the business ownership dispute] “As an exercise, let’s see how many different ways of dividing or breaking up this business we can think of. Can you help me come up with a list of ten differ­ent ways?”

Good mediators are skilled at creating new options. Here are some techniques your mediator may use to bring you closer to a resolution.

• Compromise. It’s a simple and obvious approach, but a mediator who has won the trust of both parties may be able to settle a dispute merely by encouraging each to move a little toward the middle.

Neighbor Dispute: Mediator to Ms. Ferraro: “Closing up his pool at 10 p.m. is a little early for Mr. Rafferty, and keeping it open on weeknights until midnight is clearly too late for you. Could we compromise and say on weeknights the pool will close at 11 p.m.?”

• What If. Closely related to the compromise approach, a mediator might ask you if you would agree to a particular resolution if the other side would agree.

Lease Dispute: Mediator: “Mr. Nehru, what if Ms. Sherman were to give you a check today for half of the security deposit? Would you be willing to walk away from this whole dispute and call it even?”

• Apology. The mediator might persuade one party to provide a verbal or written apology to the other for past conduct. This is most often effective in disputes involving an interpersonal relationship, particu­larly where there was a power imbalance between the parties, such as between a large corporation and an individual employee.

Neighbor Dispute: Mediator to Mr. Rafferty: “Ms. Ferraro might be more willing to agree to a reasonable compromise if you would offer her a sincere apology for the some of the things your friends said to her when she called your house.”

• Make an Exception. One party agrees to make an exception to its normal policy, with the understanding that it will not apply to other people who were not involved in the mediation and that the terms of the settlement will be kept confidential. This can work well where one party is willing to bend the rules in order to get a settlement but does not want to face similar actions from other potential disputants. For example, a utility company facing a complaint from a home­owner over location of its poles and wires might be willing to move the poles to settle this case, as long as other homeowners are not told about it.

• Go Beyond the Contract. In order to create a “win-win” solution for both sides, the parties might agree to create additional benefits for each other—or “expand the pie”—by doing things that were never planned in their original contract. This technique can also be applied to situations where there is no formal contract. In our neighborhood dispute case, for example, Mr. Rafferty might be able to “expand the pie” by occasionally inviting Ms. Ferraro and her boyfriend to use his pool.

EXPANDING THE PIE: AN EXAMPLE

A small company was hired by a large defense contractor to make parts for a new armored vehicle. The small company made the parts, but the big company rejected them, saying they did not conform to the contract. Executives of the small company thought the parts were just fine, and were angry. Not only had they spent a lot of money to make the parts, but now they were losing a major customer. Feeling cheated, the small company sued the big company for $6 million. After many months, the two firms agreed to mediate.

After several sessions over a two-week period, the two companies got within $200,000 of settling the case, but just couldn't close the gap. Then the mediator proposed a solution: the big company would give the small company a new contract to make a different type of part. If the parts were made correctly, the profit for the small company would exceed $200,000. Executives of both firms wrote thank you notes to the mediator, who effectively had helped them “expand the pie.”

• Staged Agreement. A settlement made up of a series of small steps can create a sense of security among parties who initially do not trust each other. For example, “Mr. Rafferty will begin immediately to close his pool each weekday by 11 p.m. If, for a period of 30 days starting today, Ms. Ferraro is not disturbed after 11 p.m. on week­nights by noise from Ms. Rafferty’s pool, Ms. Ferraro will not call police in the event she is again disturbed by noise, but instead will first call Mr. Rafferty directly to inform him of the problem. Mr. Rafferty will come to the phone himself if Ms. Ferraro calls.”

• Interim Agreement. The parties agree to try something for a few weeks or months and to meet again at a future date to evaluate the results. For example, a divorcing couple who cannot agree on a visitation schedule for the noncustodial parent may agree to try a plan for six months, and then meet again with the mediator to evaluate how it is working for each of them and their children.

Neighbor Dispute: Mediator to Mr. Rafferty: “I don’t think Ms. Ferraro is ready yet to give up her right to call the police. She’s been too disturbed too often. What we need is to rebuild some trust between you. If we can agree that you will try to control the noise from your pool for, say, three weeks, and then we’ll meet again to see how it went, that experience may allow us to move ahead to a permanent agreement. Would you be willing to try it?”

• Partial Settlement. The parties settle what they can and leave the rest for later. Although similar to the interim agreement strategy, here the disputants make a partial settlement and decide to put the rest of their dispute “on hold” for a while. They agree that during the holding period they will not file lawsuits and will treat each other civilly. Later, they will meet with the mediator again to see if cir­cumstances or their positions have changed in a way that might allow them to resolve the rest of the dispute.

Neighbor Dispute: Mediator to Ms. Ferraro and Mr. Rafferty: “I’m glad we’ve been able to work out this matter of noise from Mr. Rafferty’s pool. Unfortu­nately, the matter involving Ms. Ferraro’s dog raises some issues that are going to take more time to resolve, and we have agreed to meet again in two weeks to discuss them further. In the meantime, Mr. Rafferty, you have agreed not to call Animal Control if you find Ms. Ferraro’s dog loose in your yard, and Ms. Ferraro, you have agreed to try to restrain your dog from wandering in the neighborhood.”

4. Let the Mediator Negotiate for You

Mediators are trained to help people settle disputes. When a settlement occurs, the mediator has succeeded. When no solution is arrived at, the mediator has failed. This means that the mediator has a strong personal interest in getting a settlement. Take advantage of this by letting the mediator negotiate for you.

Here’s how it can work. Assume you are Mr. Nehru in our lease dispute. You want at least $6,000 of the $7,000 security back from Ms. Sherman, the landlord. During caucus, tell your mediator you want $6,000 and that’s it. No ifs, ands, or buts.

Lease Dispute: Mr. Nehru to Mediator: “Look, I appreciate all your suggestions and will concede my people may have spilled some tea on the carpet. Ms. Sherman can keep $1,000 for damages but I want $6,000 back and I’m not leaving here with less. And I hope you will clearly tell her that!”

Would you really refuse to accept anything less than $6,000? Maybe yes, maybe no. For the moment, you can keep that to yourself. But for now, $6,000 is the message you want to send to the other side, and if you’re wise, you’ll let the mediator carry it for you. The mediator will see that, in order to get a settlement, the other side will have to agree to pay you $6,000—or something very close to it. And the mediator will have to persuade the other side to do this.

Lease Dispute: Mediator to Ms. Sherman: “Well, I’ve talked with Mr. Nehru and I’m glad to say we’ve got some movement on the damage issue. Although he’s not conceding liability, he is willing to pay up to $1,000for damages; is that something you can live with?”

You can also use your mediator to float trial settlement balloons by posing your own “What if..questions. Although you might not want to propose any settlement ideas directly to the other side (for fear of seeming too eager to settle), you can try the idea out on the mediator during caucus. If the mediator thinks it holds promise, the mediator can then present it to the other side as his or her own idea, not as your settlement proposal.

Lease Dispute: Mr. Nehru to Mediator: “When you meet with Ms. Sherman again, ask her what she’d think of a package deal like this: She keeps the full damage deposit of $3,500, returns to me the $3,500 security, my people pick up the samples she’s got in storage, and she agrees to post our company’s new address in her office lobby for the next six months. Don’t say directly that I’m proposing this, but just kind of float the idea and see what her reaction is.”

In this way, Mr. Nehru, has just proposed a comprehensive settle­ment package to Ms. Sherman, but Ms. Sherman may choose to believe it was the mediator’s suggestion, not Mr. Nehru’s idea. Moreover, the proposal will be presented to her by the mediator—whom she has come to trust, respect, and regard as impartial—thus increasing the chances she will give it favorable consideration.

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