BACK TO BLOG May 28, 2017

To Caucus, Or Not To Caucus…

“The whole purpose of mediation is to bring the parties together to reach a resolution. But, the first thing we do is sit together in a room, tell the other side how bad they are going to lose this case, and drive the parties further apart.”

This was once said in a multi-party mediation several years ago. The gist of this lawyer’s comments was that he was not going to impede the potential resolution of the case by potentially offending the opposing party.

From that moment, I began to question whether an opening caucus was really necessary for a productive mediation. I have asked many people their thoughts on that quote and about the necessity of a caucus. Some have said that quote showed the lawyer truly was trying to settle the case, while others have said that lawyer was just lazy.

Over the years, the necessity of a caucus has been a persistent question. Some mediators will push for a caucus. Some will leave the decision up to the parties. Some will push for, at a minimum, a “meet and greet”.

Some important considerations that go into making the determination on whether to participate in an opening session include:

1) Show That You Are Prepared: Over the years, I have taken several mediation advocacy courses. One memorable class taught us to put together an impressive presentation that includes deposition video, the jury charge, case research, and even comparable verdicts. The theory of this approach was to display your preparation. If you care enough about your case to spend time preparing a presentation, your client and your opposing counsel will appreciate that are taking your case seriously.

2) Hearing The Opposing Point Of View: “At least we got a preview of their trial strategy.” This usually gets said when a case does not settle at mediation. I do not think this is necessarily a result of an opening caucus, but is more a function of the entire mediation process and the opening of communication between the parties. But, a caucus is an opportunity to hear what the other side deems to be the most important issues.

3) Educating: It is not uncommon for lawyers to complain that the other side probably does not have the whole story. Maybe an adjuster does not know the full risk of the experts designated by their side, or maybe a plaintiff does not have a full comprehension of the risks and costs of going to trial. Doing an opening session presentation would allow an opportunity to educate the parties of particularly problematic issues.

Mediations are about facilitating communication and discussion between parties who likely have ceased communications or never even started. However, the opening sessions is not always a productive exercise. Knowing the sensibilities and personalities of the parties (or even the lawyers) can lead an attorney to the conclusion that an opening session will not be in the best interest of getting a case settled. There are some lawyers who tend to be overly aggressive, use abusive or threatening tones, and frankly are just insufferable people.

Generally, I will encourage the lawyers to take the time to prepare for a mediation and prepare a brief opening statement. If mediation is truly about opening the lines of communication between the parties, having the advocates and parties (respectfully) express their positions can be a productive way to begin the communication process and work toward a resolution. Sometimes a party just needs a chance to vent or to be heard. And although the words spoken may temporarily push the parties further apart in the negotiation process, an effective mediator will push through that initial discussion and bring the parties closer together.