MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 121
AN UNUSUAL VARIATION ON THE JOINT CAUCUS
In January 2013, I looked at the evolution of the joint caucus from when I started as a mediator to the present. (Mediation Message no. 83.) Little has changed since then; if anything, a joint caucus with all of the parties and attorneys present at the beginning of a mediation is now even more anachronistic. The one exception to not having a joint caucus at the start of a mediation is if the complaint has not yet been or just been filed and there has been no or little discovery. Hopefully, the parties have shared their briefs in that instance but, if they haven’t, the joint caucus can be used to learn about material facts and legal contentions. Otherwise, the mediator will have to use valuable time at the beginning of the mediation to be a fact gatherer. Later in the mediation, a joint caucus between counsel can be helpful to discuss legal or factual contentions that have become “sticking points.”
But, in this message, I want to discuss the “parties only caucus,” in which no attorneys are present – a process I have not talked about before. I have used this type of mediation on eight or nine times over the years, all successfully. In other words, it is to be used sparingly. Examples where the approach has worked was a dispute between two very large companies where one was supplying a product to the other and the issue was over the price and delivery of the product; church members had differences over leadership of the congregation; a long-standing friend was suing his friend for wrongful termination and, in a breach of lease suit, it was obvious that a face-to-face meeting between the lessor and lessee could “clear the air.”
The following are guidelines for possible use of a “parties only caucus”:
- Each party is represented by a person with absolute decision-making authority;
- A stalemate in negotiations has occurred;
- Although there is a stalemate, the negotiations have not been antagonistic;
- The party representatives are intelligent, responsible and can approach a joint discussion dispassionately (this is a critical requirement);
- The mediator is confident that the party representatives can objectively discuss settlement and believes that a meeting with only the parties can bring “closure”;
- The parties are willing to meet without their attorneys being present;
- The attorneys believe their respective clients can achieve progress in their absence and have agreed to the arrangement;
- The mediator is in the room with the parties to remind them of the absolute confidentiality of their communications, to keep the discussion moving and to terminate the caucus if it has stalled or is not productive.
Whether a “parties only caucus” is to be suggested or used begins with the mediator. He or she should have a “gut” feeling, after having worked with the parties, that this type of meeting will work. It should not be used often, because all of the above preconditions probably will not exist. And, if there is any doubt about the utility of this type of caucus, it should not be considered and more traditional roads to settlement should be pursued. But, in the exceptional circumstance, it is one more method to bring about a resolution of a lawsuit.
Judge Michael D. Marcus (Ret.)
ADR Services, Inc.
1900 Avenue of the Stars, Suite 250
Los Angeles, California 90067
Copyright Michael D. Marcus, April 2016