Mediation Message No. 138


The title of this Mediation Message comes from a song from the musical “Hamilton,” where Aaron Burr complains that no one knows what happened when Hamilton, Jefferson and Madison got together in a room and agreed to Hamilton’s plan to have the national government take over and pay the states’ debts, while Jefferson and Madison obtained the national capital (the District of Columbia) for the South. Burr then sings, “No one else was in the room where it happened, (refrain); No one else was in the room where it happened (refrain). No one really knows how the game is played, the art of the trade, how the sausage gets made. We just assume that it happens, but no one else is in the room where it happens.”

Burr’s concerns do not apply to what happens in mediation separate caucuses since, ultimately, all of the parties must agree to the settlement terms but, nonetheless, “Hamilton’s” catchy tune is a convenient segue into the subject of this Mediation Message, which is “What are the mediators talking about in the other room when they are not with us?” That’s a valid question because, under the cloak of confidentiality, mediators are not allowed to discuss what took place in the other rooms.

I’ll allay your concerns and explain, very generally, what I do when I go into the separate caucuses. In the beginning, I talk about the confidentiality of the proceedings, that I don’t represent anyone in the matter and that trial and arbitration, if the mediation is unsuccessful, are fraught with uncertainty. In the opening session, I also address the skepticism of inexperienced participants about the mediation process.

On subsequent visits, I’ll discuss issues that I noted from reading the parties’ mediation briefs which require further explanation or evidentiary support. And, depending on the extent of the existing discovery, I may serve as a conduit for the exchange of facts between the two rooms. If the parties know each other’s cases well, I’ll eliminate the informal discovery process and begin to analyze, from my point of view, the legal and factual strengths and weaknesses of the respective cases, emphasizing the weaknesses in the room I’m in, including the strengths of the opposing parties’ arguments. This discussion may include points that the opposing parties have mentioned in their confidential mediation briefs that I’ve received permission to bring up in the other room.

After the informal discovery and analysis phases, I’ll encourage the parties to begin negotiating the terms, which usually begins with financial demands and offers. If the matter settles, the need for separate caucuses has essentially ended, except when discussing contested terms in the proposed settlement and release.

So, the answer to “What’s the mediator talking about in the other room?” is not very much different than what I talk about in both rooms, with the significant difference being that I emphasize the weaknesses rather than the strengths of the party in whose room I’m in.

Judge Michael D. Marcus (Ret.)
ADR Services, Inc.
1900 Avenue of the Stars, Suite 250
Los Angeles, California 90067
(310) 201-0010

Copyright Michael D. Marcus, November 2017

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