Organizing separate meetings with parties.
Votes at Conference: 11
Holding individual meetings can provide many opportunities for:
There are some things that should be thought about before holding these individual meetings though:
Mediators can propose for a break if the discussion is too long without progress.
When the mediator, during the mediation, has a separated consultation with one party, without the presence of the other party, we speak about a caucus. The caucus seems to be on strained terms with the purpose of mediation: get the parties on speaking terms, in that tense that parties negotiate effectively with each other. During the caucus there is a separated hearing and only communication with the mediator, so there is no interaction between the parties who have a conflict.  Nevertheless the caucus can be very valuable, if it will be applied and used in the right way
It is our belief that meeting with both parties separately before mediation is important and necessary to insure an efficient process. The following steps should be taken during the pre mediation caucus.
A.F.M. Brenninkmeijer, Handboek Mediation, Den Haag Sdu uitgevers 2005, p.191
Barron and Morrow state that during the caucus sessions, parties are able to speak more candidly with the mediator. The mediator can ask open-ended questions in order to identify possible obstacles to settlement or new information that might enhance settlement discussions. During private caucus sessions, parties often share confidential information about their case, the strengths and weaknesses, as well as their own needs and motivationsRena Barron and Jennifer Morrow, ‘Caucus Mediation: The Zen of Peacemaking Mediation’, , p. 1..
The advantages of the caucus should not only be sought in the jurisdiction, as well as in the psychologic and practical aspects.A.H. Santing-Wubs, mediation in juridisch perspectief, Deventer Kluwer 2007 p. 28.
- Parties feel freer to express their view on the conflict. This leads to the opportunity of the mediator to investigate the mediator’s suspicions. Furthermore, also the party that is not capable of expressing his thoughts (in the presence of the other party) is helped. - The chance of finding leads to come to a solution of the dispute is larger due to the openness of both parties. This is a large advantage if the session is jammed. - Besides these advantages, due to the caucus the mediator can give more attention to the emotions of both parties. In the regular mediation process there is less room. Prein mentioned some situations when the mediator can consider to use the caucus or not:
H.C.M. Prein, Beroepsvaardigheden en interventietecknieken van de mediator, Den Haag SDU Uitgevers 2004, p. 114.
Pre-caucusing affords stakeholders the opportunity to vent and be heard at a critical time in the mediation process, when it can reduce defensiveness and increase creativity. Once in the joint session, stakeholders communicate with each other with less mediator interference.
Encina G., B., Group Facilitation: A Research and Applications Journal Number 4, Spring 2002, pp. 3-11
Kolb, in 1985 suggested that carrying out Caucus' helped establish a rapport with the disputants. I.e., it further develops the trust and communication between the mediator and the disputants.
Kolb, D.M. (1985). 'To be a Mediator: Expressive Tactics in Mediation' Journal of Social Issues. 41(2), p 11–26
Welton et al (1988) identified 4 characteristics of caucus sessions: i) Less hostility in these meetings ii) More information regarding the underlying issues is uncovered, due to the party feeling a freedom to speak as the other party is not present iii) Greater intimacy between mediator and party iv) There is no diffusion of responsibility, as only one party is present
Welton, G.L., Pruitt, D.G., & McGillicuddy, N.B. (1988) 'The Role of Caucusing in Community Mediation'. The Journal of Conflict Resolution, 32(1), p181-202
Shapiro et al in 1985 also indicated that Caucus' can be useful where one party has to make a lot of concessions, as the more private setting allows them to grant these concessions without feeling as vulnerable to the other party.
Shapiro, D., Drieghe, R., & Brett, J. (1985). 'Mediator Behavior and the Outcome of Mediation'. Journal of Social Issues, 41(2), p101–114
Caucus' can also assist in the identification of individual's bargaining styles and positions, prior to the actual mediation itself. This can enable the facilitator to prepare for the approaches which will be taken, and ensure that the best possible environment is created during the session with both parties.
Funken, Katja, The Pros and Cons of Getting to Yes - Shortcomings and Limitations of Principled Bargaining in Negotiation and Mediation. Zeitschrift fur Konfliktmanagement. Available at SSRN: http://ssrn.com/abstract=293381 or doi:10.2139/ssrn.293381
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