Litigation
Jul. 30, 2002
Mediator's Golden Rule in Caucus? Confidentiality
Column by Jill Fannin - A significant portion of most mediations is spent "in caucus," with the mediator talking privately with one side or group. Many of the parties' strongest opinions about the mediator arise from these separate sessions. But because the caucus by definition takes place in private, it is often difficult for mediators and parties alike to compare notes on caucus do's and don'ts.
A significant portion of most mediations is spent "in caucus," with the mediator talking privately with one side or group. Many of the parties' strongest opinions about the mediator arise from these separate sessions. But because the caucus by definition takes place in private, it is often difficult for mediators and parties alike to compare notes on caucus do's and don'ts.
To understand the role of a mediator in a caucus, one first must understand the purpose of a caucus. A caucus typically is used to discuss any matters that are best discussed privately. This includes matters that might be prejudicial or inflammatory if discussed in a joint session.
For example, a caucus creates a safe haven for parties to share damaging information about their case, to engage in reality-testing with the mediator, to evaluate settlement options and to discuss bargaining strategy.
It also allows parties and counsel to vent their emotions to an impartial listener and lets mediators develop greater rapport with parties and counsel.
The foremost rule for mediators in a caucus is to honor a party's request to keep information secret. Mediators must be careful to maintain a wide berth around confidential information - a confidence may be violated through hints and winks just as easily as through words. And a pledge to keep information confidential extends to nonverbal conduct as well, meaning that a mediator would be precluded from disclosing his or her perception of a party's reaction to information.
The other principal caucus rule for mediators is to advise participants of their practice regarding caucus confidentiality. A mediator may prefer to have the parties grant him or her discretion to reveal to the opposition any information learned during a caucus except that which parties specify must be kept confidential.
Alternatively, the mediator may prefer to treat all information learned in a caucus confidential except that which the parties agree may be shared. Or, the mediator and the parties may discuss the options and come up with their own preferences.
The mediator must be sure that the parties understand the ground rules for that mediation. Ideally, rules should be discussed in the joint session and confirmed again at the end of the first caucus with each party. If the mediator forgets, the parties should advise the mediator of their confidentiality preference before the first caucus ends.
It is particularly important to revisit the rule when the parties have begun to talk openly with the mediator and have relayed information that the mediator believes the parties may wish to keep private.
By reminding parties that they may deem any matter disclosed in a caucus to be confidential, the mediator can reassure the parties that he or she values their candor and is interested in protecting their confidences.
Similarly, the mediator may want to close each caucus with a brief recap of the general points the mediator may and may not share with the other side. This practice keeps the parties actively involved in their negotiations and can head off misunderstandings.
This "recap" practice dovetails into another rule mediators must bear in mind during caucuses: Keep the parties advised of information communicated to the other side. While mediators cannot and should not be expected to repeat verbatim all matters discussed with an opposing party, they should at least be able to identify the general facts and positions they have relayed (or chosen not to relay) on a party's behalf.
Mediators also should be able to recall with precision all settlement terms, descriptions of a party's bargaining position and any "messages" that accompanied a settlement figure.
For example, the mediator should be able to advise a party whether he or she told the opposition that the party's settlement proposal was "flexible," "somewhat flexible" or "very flexible." In this way, parties will be certain of their bargaining positions if the case does not settle.
As a general rule, mediators should not ask for a "bottom line" settlement figure. While it is often helpful for the mediator to know the general range in which a party may be comfortable settling, the mediator rarely needs to know one concrete figure, at least not until it is time for the party's last move of the day.
If parties do advise the mediator of their bottom line, they may find themselves negotiating with the mediator over a different figure. Or the mediator may take the party at his or her word and a potential settlement at a close but different number may be forgone.
A mediator also should take care to exercise his or her discretion to share information with restraint. Most importantly, the mediator should always attempt to convey the parties' positions and/or emotions without inflaming the other side.
For example, it is better to say "John wasn't too happy with the counter," instead of "John hit the roof when he heard the counter, and he thinks your proposal is idiotic!" After all, the goal is to foster negotiations, not drive parties further apart.
Mediators also can help waiting time pass more quickly (and more productively) by assigning useful tasks to be completed while the mediator caucuses with another party. This "homework" might include fine-tuning figures or settlement language or calling outside participants for input or more authority.
Finally, mediators and parties should avoid caucusing unnecessarily. The one sure way to avoid the pitfalls of a private session is to have a joint session. "Joint sessions" can take many forms, such as bringing an opposing counsel or a representative into another party's caucus, meeting with the lawyers, or meeting with the clients.
Some form of joint session is especially useful where the parties wish to convey a complicated settlement proposal or have a strong reaction to a particular settlement term. In fact, it is often more persuasive for parties or attorneys to convey their own settlement positions.
This provides the opposition with an opportunity to gauge just how strongly a party feels about his or her position and can enhance the opposition's understanding of the proposal, particularly when permitted to ask brief questions about the settlement terms.
If parties are uneasy about communicating proposals directly, they can practice with mediator in caucus before sharing the proposal with the opposition.
Mediation participants must remember that the mediator is there to serve them. If parties or counsel are uncomfortable with a mediator's actions, they should not hesitate to bring the matter to the mediator's attention. Indeed, that is the perfect subject for a caucus.
Jill Fannin is a resolution expert with JAMS in San Francisco.
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