When it comes to using the process of mediation to settle disputes in divorce, I believe in meetings with both sides ofthe dispute together with the neutral mediator.  Therefore caucusing is not the first method I would employ if I do at all in resolving issues with a couple. A caucus in family law and divorce mediation takes place when private meetings between each participant and the mediator are held. Depending on the circumstances, a caucus may be a one-time occurrence, something that happens several times, or something that takes place throughout the full course of the mediation. In my opinion, usually separating the clients involved in a dispute resolution is a disruptive and problematic process that removes some of the empathy and understanding that goes into making mediation work. On top of that, the use of private sessions can frequently make clients feel as though they are being conspired against, as during high-conflict divorce cases, emotions are often running high, leading to feelings of anger and paranoia.

Of course, there are exceptions to the rule in most cases, and in some circumstances, caucusing may be considered as a useful solution to a divorce mediation problem. For instance, one goal that I try to keep in mind while working as a divorce mediator is to help de-escalate conflict and assist clients in overcoming difficult emotions. Ideally, this would mean allowing each spouse to discuss their issues face-to-face, however in some instances one spouse may refuse to reveal something in the presence of the other client – particularly when physical violence has existed in the past or other threats may be in place. Sometimes, even when communication appears to be honest and open, divorcing spouses may struggle to break free from old patterns of communication, which leaves them unable to speak up about important concerns.

When Do Mediators Consider Caucusing?

When divorce mediators choose to utilize caucusing, I believe that they should only do so because they have considered all of the circumstances and determined that it’s the best approach for making progress. After all, providing a caucusing opportunity opens up possibilities for suspicion developing amongst parties – thereby risking the appearance of neutrality and transparency of the mediation process.

Divorce mediators may turn to caucusing for a variety of reasons. For instance, mediators may choose to offer caucus in an attempt to get more information from a party who is unwilling to reveal private information. In other cases, a caucus may be provided in an effort to relieve building tension and provide parties with an opportunity to “sound off” about their issues without angering or alienating the other client. In some circumstances, a caucus may even be given as a way to test alternative solutions with each side separately, or offer a coping suggestion to one particular party – though this removes the element of neutrality which I consider to be essential to mediation success.  A good article on Mediate.com provides some reasons for considering caucus in mediation:

• Caucus allows a quick break from a tension-filled situation
• It can allow nervous parties to provide information that they’re scared of sharing in the presence of the other party

Caucus can be more appropriate in times when the intervention of a mediator would run the risk of causing the other client to appear weak or uncertain in the eyes of the other party. After all, it can be difficult to maintain strength and composure when discussing concerns with an ex-spouse. Other reasons to potentially consider caucus include:

• It offers a safe solution for one party to express worries about threats of abuse or violence at the hands of the other party.
• It can allow parties to digest or think carefully about painful revelations that they have discovered in private, in order to “save face.”
• It can allow parties to discuss and explore the goals more fully, and consider potential solutions for negotiation without showing uncertainty to the other party.

The Controversy of Caucusing

While caucusing can have its part to play when it comes to managing dispute resolution in divorce mediation, I do my best to stay away from it when addressing concerns with my clients. I’m not the only attorney who feels this way either, as there is considerable controversy across the field in how mediation should be handled. While some professionals and mediators believe that caucusing provides a range of essential benefits to parties during a mediation procedure, others fully support the fact that caucusing detracts from the neutrality and trust required in a mediation procedure. After all, mediation is typically defined as a legal process wherein two or more people come together to work out a solution to existing problems with the help of a neutral third party. It can be tough to come to a mutually satisfactory solution without any face-to-face interaction.

Even when caucusing is limited to a few instances throughout mediation, it can remove some of the trust and comfort that each client feels when revealing information to their mediator. This means that at the end of the process, no-one walks away feeling as though their issues have been fully addressed. Unlike a judge or arbitrator, it’s important for clients to know that a mediator is completely neutral, and does not make decisions on the behalf of either client, or take sides. The job of a mediator is to help the people in the dispute evaluate the goals that lie ahead of them, and find a solution that satisfies them both.

I find that joint mediation offers a safe environment that is built on trust, transparency, and the obvious neutrality of the mediator. Within a joint mediation session, I can work to ensure that both clients feel as though their issues are heard as they overcome obstacles – and there is a lot of value in this for emotional clients in search of an answer to their problems. Within joint mediation, both sides get a chance to air out their worries, without the worry that secrets may be revealed behind their back. Joint mediation, in my belief, not only offers a more effective solution to dispute resolution, but can even help when it comes to maintaining better relationships and creating empathy in situations where clients need to maintain an ongoing interaction for the benefit of children.  I, however, will think about and explore different options to break the ice, such a caucusing, if both sides are willing.  As a mediator, I want to try to work through the issues that need to be decided between a couple and keep them away from litigation battles if at all possible.

To discuss the opportunities available in family law and divorce mediation, please contact me, Mr. Darren M. Shapiro over the phone at 516-333-6555 or via our online form. You’ll be able to discuss your concerns and schedule your first free half-hour consultation with your spouse.