Posts Tagged ‘mediation caucuses’

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.

Mediation Message No. 36

GUIDELINES FOR CONDUCTING THE JOINT CAUCUS

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

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

Mediation Message No. 3

OPENING STATEMENT V. PRELIMINARY REMARKS

After the mediator’s introductory comments at the beginning of a mediation, counsel are given the opportunity to make an opening statement. Because the purpose and method of this presentation are both similar to and dissimilar from an opening statement at trial, I prefer to call them preliminary remarks.

An opening statement at trial is supposedly not for argument; instead, it is the time for counsel to tell the judge or jury what he/she intends to prove. While preliminary remarks at mediation can include the same content (especially if discovery has been completed and trial is imminent), their purpose is more than just to educate and impress the trier of fact.

• Preliminary remarks can be argumentative. In other words, they can include not only a summary of the potential evidence but also an evaluation of that same evidence and why counsel believes he/she shall prevail at trial;
• Preliminary remarks can reference legal issues (such as the result of demurrers, motions to compel discovery or impending motions for summary judgment);
• Unlike trial, where the feelings of opposing counsel and his/her client are not necessarily catered to, attorneys operating in good faith at mediation should be careful in their preliminary remarks not to alienate the opposing side;
• Preliminary remarks can be limited by counsel or the mediator to specific issues (such as causation or damages);
• Even when discovery has begun and the parties have exchanged mediation briefs, preliminary remarks will most probably provide the opposing client (as well as the defense adjuster) the first opportunity to assess the other side’s case;
• A well rehearsed client can participate in the preliminary remarks by answering questions posed by his/her attorney;
• In the appropriate situation and with the close supervision of the mediator, attorneys may be given the opportunity after their preliminary remarks to ask questions of their opponent regarding specific legal issues and facts.
• With the encouragement and assistance of the mediator where the parties are amicable and agreeable, preliminary remarks can be used as a vehicle for additional discovery (especially as to continuing damages) and concessions.
In other words, preliminary remarks are an extremely important part of mediation.

Copyright, Michael D. Marcus, June 2003