Mediation Message No. 35

THE JOINT CAUCUS – WHEN SHOULD IT TAKE PLACE?

At the end of a successful mediation, in which the participants had been separated during the entire process, the adjuster, who was from the East Coast, was surprised that there had been no joint caucus because it was his experience that they were mandated. That comment is the basis for this message which first reaffirms that every mediation should be approached as a unique event because no two cases are similar; even when the facts have a common theme, the needs, desires and personalities of the participants will vary. Accordingly, the following factors should be taken into account by the mediator and the parties in deciding whether or not to have a joint caucus.

A joint caucus is beneficial where:

• The parties and their attorneys, either because of the early calendaring of the mediation or incomplete discovery, do not have a good understanding of the other side’s legal theories and facts. In this situation, a joint meeting, under the guidance of the mediator, is an excellent way to learn the facts and contentions. Thus, the parties, rather than the mediator, deliver their own messages. The joint caucus also provides the parties with the opportunity to establish positive lines of communication, which will be beneficial in settling the case.

• The parties and/or their respective counsel have had little or no contact since the case began. A joint caucus provides a vehicle for all involved to impress each other with their respective legal abilities and to assess or size up the opponent.

• By going over the ground rules for the particular mediation with all of the participants at the same time, the mediator inferentially affirms the concept that everyone will be treated equally.

• When the facts are highly technical or complex, a joint caucus, under the mediator’s supervision, is helpful in defining or refining the nature of the dispute. In contrast, the mediator, in discussing the same facts in a separate caucus, may not have sufficient knowledge of the subject matter to be able to respond effectively to a party’s argument on a particular point.

• The mediator wants to advise the participants that, in his opinion, certain factual or legal issues are more important than others and should be examined. With an agenda having been established, the parties can then discuss those issues with the mediator in follow-up, private caucuses.

• Even if a joint caucus is not called for at the beginning of a mediation, developing circumstances, such as the introduction of new facts or legal theories, may call for the participants to get together to discuss that new subject.

A joint caucus has little or no value when:

• The mediation is being conducted shortly before the trial and the case has been fully litigated so that the parties and their attorneys know each other well and have a full understanding of the other side’s factual and legal arguments.

• A corollary of the above is 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.

• There is a limited amount of 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.

• One or more of the attorneys advises that there is great hostility between the parties, which will be exacerbated if they are brought together in one room. Hostility between the attorneys, however, is not a valid basis for not holding a joint caucus because they should be able to adjust to and contend with overly aggressive lawyering.

• The mediator observes that one of the parties, because of circumstances unrelated to the applicable facts or law (for example, an attorney is unprepared or a party is pro per), has an unequal bargaining position over the other, which would become apparent in a joint caucus, thereby making it potentially more difficult to later obtain concessions from the party in the superior position.

Guidelines for conducting a joint caucus will be discussed in the July Mediation Message.

Copyright, Michael D. Marcus, June 2006

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