IV. The Reasons for the Success of Caucus Mediation

The primary thesis of this Article is that caucus mediation, except in family law and employment disputes where there is to be an ongoing relationship,[36] can best reincorporate the lost element of conciliation into the mediation process.[37] This Article seeks to demonstrate how peacemaker techniques—techniques which avoid adversarial and confrontational methods of persuasion—can help the parties find not only resolution, but conciliation, peace, and healing. It is suggested that the mediator is more than a dispute resolver; she seeks to be a peacemaker and everything she does should lead to the establishment of peace and healing between the parties. Indeed, many conclude that peacemaking is the highest calling in the legal profession and one of the highest callings in life.[38]

This Part discusses why caucus mediation is so successful in gaining not only resolution but conciliation, peace, and healing. The following Parts explain the goals of caucus mediation,[39] discuss the format of caucus mediation,[40] describe the qualities of a mediator/peacemaker,[41] and set forth the peacemaker’s techniques for resolving disputes.[42]

There are any number of reasons why caucus mediation is conducive to establishing conciliation, peace, and healing between the parties. First, the process, from the beginning of the opening joint session to the final caucus, is designed to be a kinder, more user-friendly approach to resolution. It literally is the opposite of the courtroom trial and adversarial mediation where the mediator takes on the role of devil’s advocate. In both the courtroom and adversarial mediation, the parties are fighting with each other to win. They are not on the same side seeking a common resolution that both can accept. In the courtroom, the goal is to impeach, discredit, and undermine the opponent to make him a loser. In peacemaking, the goal is to be supportive of the opponent to make him a winner so that there can be a winning result for both sides. The courtroom battle, as well as adversarial mediation, leaves all participants and counsel mentally bruised and scarred, whereas nonadversarial mediation permits the parties to find a sense of peace and closure, and, indeed, can facilitate a healing of the wounds.[43]

Second, the mediator/peacemaker is trained to be supportive and work with both the parties and counsel and not confront them or put them on the defensive. Instead of playing devil’s advocate, the peacemaker seeks to build rapport and trust with all concerned. When the parties feel the mediator is truly interested in them and in the resolution of the case on the fairest terms possible for all, it is far less difficult for them to compromise. It is this final compromise that closes the gap to settlement.[44]

Third, the mediator/peacemaker is trained in the art of resolving disputes. He learns to read body language and can identify whether a verbal “no” is really a silent “maybe” or a disguised “yes.” Mediation is an intensive insight-oriented process, which can be developed through training and experience. The mediators who have been most successful are those who have developed and honed these insights to the point that they can successfully read the parties and handle any surprise or contingency.

Fourth, through the confidential caucus, at which the mediator can speak in confidence with each side, she is positioned to gain information about the case unavailable to a judge, jury, or arbitrator. She can ask each party and counsel what their weaknesses are in their case or the concerns they have about their case.[45] The mediator can also ask each attorney what she believes a jury will do in both the best and worst case scenarios. When both sides have answered these inquiries, the mediator has a unique perspective and understanding of the case. She is in a position to give guidance to a meaningful and fair settlement.

Generally, knowing that the information sought will be kept confidential from the other side, lawyers will discuss candidly their weaknesses and concerns and how they evaluate the case. The responses given are normally shorn of advocacy, rhetoric, and the emotional factors lawyers employ in front of judge, jury, or arbitrator. Through the process, the mediator can quickly get to the heart and real merits of the case.

Fifth, mediation is simple to initiate, inasmuch as the parties and counsel need only set a mutually agreeable time to meet and agree upon a mediator. Its user-friendly mechanism makes it far less threatening to the parties than a trial, and the parties can more actively participate than in the courtroom. Likewise, because the process is informal, it is easy to conduct. Counsel, rather than presenting a case through witnesses and documents, is primarily responding to questions of the mediator and reacting to the direction the mediator is going.

Sixth, the peacemaking process encourages a spirit of cooperation, which grows as the mediation progresses. This is the opposite of what occurs in the courtroom where the parties are adversaries. Rather than coming to the table with the intent of winning, the parties approach mediation with the goals of compromising and finding resolution. As the mediation progresses, the parties and counsel have a growing investment in terms of time and money in a successful outcome.

Because of the investment the parties have in the process and their expectancy of success, momentum is generated, which grows as the mediation progresses. Caught up in the momentum, the parties are encouraged to compromise further. Many times, because of the investment, the parties will settle on terms which they never would have considered when the mediation began. An experienced mediator will feel the momentum and recognize that a case will settle long before the parties recognize it.

Seventh, an important advantage of mediation is that all parties and counsel are present at the same time, in the same place, and for the same purpose. It is helpful for the mediator to be able to speak to each party and counsel directly and convey messages or information back and forth between the participants. If a question is raised or a point made, the mediator can immediately go to the other caucus room to get a response.[46] There are no delays.

By communicating back and forth between the parties, the mediator is able to narrow the issues to those which will be determinative of the outcome of the case. At times a party will realize that a point, once considered significant, is no longer valid and that it must be reevaluated. If a new point is raised, the mediator can weigh the reaction of the other side.

With multiple defendants or plaintiffs, there is simply no other way to have meaningful negotiations other than to have them all present at one time at the same place. Many times the mediator must piece together a settlement proposal with each party providing its input. To try to do this by telephone or by some other process is unrealistic. Too much time is consumed and momentum is lost.[47]

Eighth, confidentiality is another important benefit of mediation.[48] By law and by contract, a mediation is a settlement conference which forecloses later disclosure.[49] Also, by the terms of the mediation agreement, the mediator, her notes, records, and work product cannot be subpoenaed for a later trial or deposition should the case not settle. Preserving absolute confidentiality is important to the process. Likewise, mediation sessions are closed to all outsiders, including the press. This is not true, however, if the case is litigated in the courtroom.

There is another aspect of confidentiality which is important to the success of the process. When the mediator meets in private caucus with each side, she gives assurance that whatever is discussed will not be disclosed to the other side.[50] This permits the parties to make settlement proposals, float figures, and suggest creative ways to reach resolution, knowing that the mediator will not disclose such to the other side. The mediator can take a proposal and discuss it with the other side as her own to see how the parties react.[51] In this way, the party originating the proposal has not made a commitment to the idea and can give it further consideration.

In floating a settlement figure given by one of the parties, for example, the mediator can ask the other side whether they would consider it if the first party would consider it. In this way, the first party is not committing to the figure. If the other party knew that the figure came from its opponent, the opposing party likely would bid off the figure and not give consideration to accepting it.[52] In other words, the mediator can “test the waters” without requiring commitments from either side.

Another important aspect of confidentiality is that a party in caucus can use the mediator as a sounding board to test her case. Getting a mediator’s reaction in confidence can be quite helpful to a party in evaluating the case. It can act as a reality check.

Ninth, the user-friendly character of mediation lends itself to a very flexible format. In fact, the mediation process can be adapted to almost any contingency required in a particular case. There are no rules of evidence, established protocol, or precedent that must be followed. For example, if an important witness, who has not yet been deposed, is needed to verify a certain point or position, she can simply be called on a speakerphone with all parties present and asked what her testimony will be. It will be explained that she is not under oath, but because an effort is being made to settle the matter amicably, her testimony is important. A doctor might be called, who has not yet been deposed, and asked about her expert opinion concerning a certain matter. The mediation can be interrupted to allow the mediator to interview personally one or two witnesses to get a better understanding of the case.[53]

If the mediator feels an insurance supervisor, who did not attend the mediation but who is making the final decision on the file, is not properly evaluating the case, the mediator can ask for a recess and travel to the supervisor’s office to make a presentation. This might include a thirty-minute video highlighting some of the more important deposition testimony. After this, hopefully the mediator can resume the mediation with more authority.

Tenth, mediation is an excellent forum for parties to vent and express their feelings. A mediator is quite willing to listen empathetically and, in essence, give the parties their day in court. When the parties have released their emotions, there is a decided change in their demeanor, and the mediation can become quite productive. Many people just want to be heard by someone.[54]

Eleventh, mediation is an excellent vehicle for helping the parties continue their relationship if this is important. In employment situations, businesses, and schools, the parties may continue working together following legal action. Legal proceedings can destroy or undermine that relationship because of the nature of the courtroom. By bringing the parties together in mediation, where an effort is made to heal the relationship rather than just resolve a dispute, a difficult problem can be overcome and a healthier working relationship established. This is particularly true of minority persons who often feel they have been discriminated against both as to wages and job promotion.[55] Employers, who are striving to comply with the law and avoid the antagonisms generated by lawsuits, welcome the opportunity. Some companies are including mediation clauses in their collective bargaining agreements and employment contracts.[56]

Twelfth, mediators play an important function in helping the parties properly evaluate their cases and encouraging compromise when it is warranted. Generally, a mediator will not be evaluative and tell the parties what she believes a case is worth, but will leave this to the parties and counsel. But, she can help develop the strengths and weaknesses on both sides and assist the parties to realistically evaluate their respective cases.[57] In this capacity, the mediator fulfills a very important function. For the plaintiff, if liability is lacking, she can help counsel and the plaintiff recognize this possibility. If a party is not listening to counsel and has exaggerated expectations, the mediator, by the questions she asks, can help counsel acquaint the party with the true merits of the case. Likewise, on the defense’s side, the mediator can help the adjuster properly evaluate a case, and where more should be paid, she can support the adjuster’s request for additional authority.

Thirteenth, the experienced mediator can help the parties craft creative settlements. Because any settlement entered is contractual, the parties can agree to any terms they wish as long as they do not violate public policy. An experienced mediator, sensitive to the needs of the parties, can help them craft a settlement that will accomplish much more than what a judge, jury, or arbitrator could do.[58] For example, the parties might agree to a written apology, a letter of commendation or recommendation, or to taking a sensitivity class to improve employer-employee relationship skills. The defendant might agree to name a conference room after a terminated employee suing for age discrimination. The parties could agree to place part of a settlement in a structured annuity which would provide a flow of tax-free income. The parties might even agree to be bound by the results of a polygraph test.[59] The possibilities are limited only by the creativity of the parties.[60]

Fourteenth, the mediator can help the attorneys get their clients under control when they have unreasonable expectations. Many times the attorneys will request mediation because they are having difficulties with their clients. Because the mediator can ask the attorney what the weaknesses are in the case, in private caucus, the attorney is given an opportunity to discuss them in front of the client. Up to this time, the client might have refused to even consider weaknesses, but because the mediator is asking, the client is forced to listen. Likewise, the mediator can ask the attorney in confidence what a jury might do in both the best and worst case scenarios. Again, the client is required to hear what the worst case is, and it may come as a shock. Certainly, it can be a reality check. As the mediation progresses, the mediator can reinforce the concerns that the attorney has. With both the attorney and mediator having reservations about the case, most clients are willing to begin compromising and work to resolution.

The mediator can also help the attorney in another way. By noting the fine work an attorney is doing, if this is the case, the mediator can reinforce the attorney’s position with the client. Many times clients do not appreciate how skilled and creative their attorneys are, and when this is pointed out by the mediator, they have a new appreciation for the way they are being represented. Realizing this, clients are more willing to listen to their attorneys when asked to make that final compromise to settlement.

Finally, the mediator can help counsel by deflecting any criticism or anger that might be engendered as the mediation progresses. Rather than allowing counsel to be criticized by the client, the mediator can act as the lightning rod so that the attorney-client relationship is not undermined. This is important, because it is the attorney who will generally get the client to make the final move to settle. If the attorney-client relationship has been undermined, this will become more difficult.

V. Goals of Caucus Mediation

Date: 2015-01-02; view: 843