Mediation Message No. 36


Last month’s Mediation Message discussed the considerations for holding or not holding a joint caucus. This message looks at the guidelines when a joint caucus is going to take place.

• Who should be present? Ideally, all parties, attorneys and persons with settlement authority should be present but, occasionally, the circumstances (such as extreme hostility between the parties) may dictate that more can be accomplished if only the attorneys and mediator meet.

• The nature and purpose of mediation – If one or more of the people present have never before attended a mediation, the mediator should begin by explaining the benefits of mediation, how the process works and the importance that all participants “buy into” the concept that resolution of the dispute is more probable when everyone cooperates. Even if all of the participants are mediation-savy, the mediator should make some optimistic comments about the mediation process.

• Confidentiality – The mediator should mention that both the Evidence Code and case law provide that all discussions in the joint caucus are confidential, that no statement made in or exhibit prepared for the mediation can be used or referenced in subsequent proceedings and that the mediator will not communicate any statements made by participants in a separate caucus to the opposing party without the first group’s consent. The mediator should also have all of the participants sign a printed confidentiality statement which affirms both their knowledge of the foregoing confidentiality principles and their promises not to divulge mediation confidences.

• Significant dates – Because a soon-to-be or distant trial and the existence of pending motions (for example, summary judgment) will impact the discussion, the mediator should obtain from the parties information about all calendared matters regarding the case.

• Establishing the issues to be covered – The mediator should summarize the important issues or subjects unique to the case that need to be resolved at the mediation. For example, in an employment dispute, the mediator could advise that essential issues are whether or not the employee was disabled and, if so, whether the employer accommodated that disability; in a business dispute, whether an integration clause in a written contract prevents the use of parol evidence to modify those terms and, in a personal injury action, the scope of insurance coverage and the extent of the plaintiff’s claimed loss of earnings and medical expenses.

• Preliminary remarks – If the attorneys have previously indicated to the mediator that they want to make statements regarding their respective views of factual and/or legal issues in the case (not all attorneys see the need or are prepared to do so), the mediator should recommend to the assembled that, at the completion of each attorney’s statement, opposing counsel may ask or make well-intentioned questions and observations about what has just been said but that the purposes of these questions and comments are to clarify or educate and not to cross-examine or harangue. The mediator should also mention that the attorneys should not interrupt one another and that their back-and-forth dialogue will continue as long as it proves helpful. (See Mediation Message no. 3 [“Opening Statement v. Preliminary Remarks”] for a more detailed analysis of the contents of preliminary remarks.)

Copyright, Michael D. Marcus, July 2006

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