Mediation Message No. 83

MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 83

THE EVOLUTION OF THE JOINT CAUCUS

No part of the mediation process has evolved more in the eleven plus years that I’ve been involved than the joint caucus. When I trained as a mediator, I was told that every mediation should begin with a joint caucus; now, it is rare for mediations to begin in this fashion. That change is reason to give a fresh look at the joint caucus.

The joint caucus, as contrasted with a separate caucus, is a meeting of the mediation participants at the same time in the same room. It can include all of the parties and their attorneys or just the attorneys and, on rare occasion, only the parties.

In the 1990s and early 2000s, the accepted practice was that a joint caucus should be held at the beginning of every mediation at, which time, the mediator would talk about confidentiality and how the process would be conducted and the attorneys would talk about the merits of their respective cases. That practice has been replaced today by a preference for separate caucuses at the beginning of mediations so that few attorneys or mediators request or suggest a joint caucus at the commencement of mediation. No one factor stands out as having caused that change; instead, it’s a product of several circumstances including that attorneys now are more knowledgeable about the mediation process and don’t see a benefit of an initial caucus; many attorneys are put off by the grandstanding of opposing counsel at an early joint caucus; the animosity caused by intense legal skirmishing causes some attorneys to not want to share the same space with opposing counsel and the litigants, themselves, often do not want to be near the person or entity they are suing or who is suing them.

Generally, a joint caucus to discuss facts or theories has little or no value when the mediation is being conducted shortly before trial and there has been extensive discovery so that the parties and their attorneys know their own cases well and have a full understanding of the other side’s arguments. A corollary to the above is that a joint caucus is probably unnecessary where the parties are meeting in a follow-up mediation, they participated in a joint caucus in the initial mediation and the issues have not changed substantially. Also, joint caucuses should not be considered or at least limited where there is little time to conduct the mediation and, in the opinion of both the mediator and the participants, the available time can be better used in separate caucuses with the participants.

A joint caucus at the beginning of mediation can be helpful if the complaint has not yet been or just been filed and there has been no or little discovery. If the parties have not shared their briefs, the joint caucus can be used to learn about material facts and legal contentions. If a joint caucus is not held in this situation, mediators will spend considerable time walking back and forth between the parties’ separate rooms to share the information they have just learned or attempt to obtain answers to questions about relevant issues. In these circumstances, it’s more expeditious to use the joint caucus to facilitate discovery.

If a joint caucus is held at the beginning of mediation because all parties and attorneys want one, and the mediator believes that a joint caucus will be productive, the mediator should ask the attorneys how they want the caucus to be conducted. They may want to make preliminary remarks about their respective cases or just have the mediator make general statements about the nature of mediation and the applicability of confidentiality to everything that occurs in mediation. If the attorneys want to make “opening statements” (not all attorneys see the need to do so or are prepared to make them), the mediator should recommend to the assembled that, at the completion of each attorney’s statement, opposing counsel may ask well-intentioned questions about what has just been said but that the purposes of these questions is to clarify or educate and not to cross-examine or harangue. The mediator should also mention that the attorneys should not interrupt one another. It may also be helpful to remind the attendees to avoid ad hominem attacks against an opposing party or counsel.

Even if a joint caucus is not held at the beginning of mediation, it is beneficial early on for the involved attorneys to introduce themselves to one another and to the parties, if they have not met before, because putting a face to a name “personalizes” the process and enhances the chance that the mediation will be successful. In that regard, mediators should not attempt to convene a joint caucus if there’s a feeling that the participants, including the attorneys, cannot get along with one another and that putting them in the same room will create additional tension and strife rather than move the parties towards settlement.

Notwithstanding the current trend away from joint caucuses at the start of mediation, such a meeting can play a vital role later on in the process. When such a joint caucus takes place, the mediator should remind all present that statutory confidentiality protects both statements made in mediation and writings prepared for mediation so that nothing said or written can be used in any future motion, hearing, discovery or trial should the mediation be unsuccessful.

A joint caucus later in the mediation can be useful when both sides have bogged down regarding a factual or legal issue and the mediator believes that the best way to break this impasse is to have the attorneys get together to clarify or explain their respective positions. In this situation, to conserve time, the mediator should advise the attorneys that this particular joint caucus will be used only to discuss the issue causing the log jam and when everyone has had a chance to express his or her views, the meeting will end and the participants will return to their separate rooms for follow-up, private caucuses.

Joint caucuses are almost essential when the case has settled and the contents of the “short” or more formal settlement and release must be discussed. Experience shows that, at this stage, attorneys who were once combative can quickly become genial and cooperative.

Thus, whether a joint caucus is to be used depends on the circumstances of the particular case. It may be appropriate in one instance and to be avoided in another. The decision whether to have one should be made by the parties and their counsel. Whether to recommend one is up to the mediator.

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, January 2013

Please visit my website at www.marcusmediation.com for information about my mediation and arbitration background and experience. Copies of my previous Mediation Messages and Arbitration Insights are available by going to the articles link on the website.

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