As a result, mediation as a dynamic dispute resolution process is continually evolving. Intellectually curious and committed practitioners are constantly exploring and developing innovative methods to better address the practical, strategic, and psychological aspects of the mediation process. Once these distinctions are accurately identified, the mediator has wide latitude to create an appropriate “party-centered” template for the mediation design that can serve to facilitate the goals of the respective parties. By planning an approach to the negotiation that focuses beyond the parties’ stated positions and explores their underlying needs and shared interests, the mediator can create new possibilities as well as new realities. The common denominator for achieving positive outcomes, no matter the dispute, boils down to mediator competencies such as self-awareness, thorough preparation, effective communication, and the ability to identify and properly address the parties’ emotional state, core concerns, and process goals.
This article addresses the efficacy and advantages of engaging in pre-mediation caucuses—particularly in cases in which mediators face unique challenges and find themselves operating in a climate in which emotions run high and the negotiation process is characterized by distributive or positional bargaining. See American Arbitration Ass’n, Handbook on Mediation 77 (Thomas E. Carbonneau & Jeanette A. Jaeggi eds., ABA Publishing 2009). In distributive negotiation, parties typically share little accurate information about their interests and objectives. They tend to present conflicting stories and either hold back or exaggerate. They may attempt to confuse the other with misleading, incomplete, or inaccurate information.
Faced with this reality, creating a mediation design that includes pre-mediation caucuses with the respective parties provides the most practical and efficient opportunity to shift the paradigm from a pure positional approach into a joint problem-solving one. Distinguished professor and author Carrie Menkel-Meadow succinctly sums up the approach, which should be the theme for all types of negotiation: “Problem solving is an orientation to negotiation which focuses on finding solutions to the parties’ set of underlying needs and objectives. The problem-solving conception subordinates strategies and tactics to the process of identifying possible solutions and therefore allows a broader range of outcomes to negotiation problems.” Carrie Menkel Meadow, “Toward Another View of Legal Negotiation: The Structure of Problem Solving,” 31 UCLA L. Rev. 754, 794–813 (1984).
Making the Case
Every mediation is certainly distinctive. Mediators who are routinely called upon to serve as a neutral in complex multiparty cases must often be reminded of the now-famous line from Forrest Gump: “Life is like a box of chocolates—you never know what you’re gonna get.” (Paramount Pictures 1994).
Mediation sessions can typically involve a myriad of participants—one or more plaintiffs and respective counsel, multiple defendants, corporate officers and representatives, in-house counsel, national defense counsel, local defense counsel, primary and excess insurance carrier representatives, personal representatives, family members, structured settlement advisors, and on occasion, expert witnesses for the respective parties. It is commonplace to be faced with dozens of participants at the mediation session. Prior to the mediation session, the mediator will normally receive pre-mediation submissions from the parties, usually consisting of a voluminous assembly of materials to support the parties’ respective positions.
Over the past several years, I have encouraged the use of pre-mediation caucuses and discovered that when the participants agree to engage in this process, they reap the rewards in the form of better outcomes. During these pre-mediation caucus sessions, the mediator can, among other things,
- begin to establish trust and encourage the development of the “Good types of Power”—i.e., principled dialogue, the power of problem solving, the power of knowledge, the power over the process, and the power of self-determination (Adjunct Professors Lamoureux & Seifert, Mediation Theory and Practice, Straus Institute for Dispute Resolution, Pepperdine University School of Law; Class Lecture and Classroom Whiteboard Notes, Saturday, January 22, 2011);
- clarify the goals of mediation;
- define the roles of the participants;
- identify and frame the issues in a genuine and constructive manner;
- uncover interests that may lie behind stated positions;
- begin the process of generating creative ideas; and
- begin to transform the negotiation into a mixed motive exchange (not only claiming value but creating value as well). Id.
There are several practical considerations for promoting pre-mediation caucuses, which, like the mediation session itself, are generally cloaked in confidentiality, either by statute or as part of a private mediation agreement. When an agreement is reached to engage in pre-mediation caucuses, they are typically scheduled following receipt of the mediation submissions from respective counsel and follow-up telephonic conferences to clarify any issues or questions that might arise relative to the provided materials. For logistical reasons and convenience of the participants, many of whom are traveling from out of town to the mediation location, the caucuses are usually held one or two days prior to the mediation. These meetings are more relaxed as they are devoid of time constraints and procedural formalities. Also, the respective parties do not have to concern themselves with the looming presence of opposing parties. It allows the mediator to meet and identify all participants vital to the process. The caucuses also provide an opportunity for necessary decision makers, who may not be available to attend the mediation in person, to be involved in the process.
Of significant importance, the caucuses allow the mediator, in conjunction with the parties, to define the mediation parameters in advance—how the mediation process will be conducted (i.e., joint session or not), whether there is any alignment among the plaintiffs or the defendants or both, and the manner in which the negotiations will be handled (i.e., separate or joint demands and offers).
Valuable insights can be gained relative to the parties’ analysis of the case—are their positions tied to realistic settlement or jurisdictional verdict values or both in similar types of cases? The caucuses also provide the mediator with valuable insight into the interaction among the various parties and whether any of the party participants may prove to be a hinderance to the process. For the mediator, knowledge is power, and the information gathered during this process will better arm the mediator with vital insights in order to work efficiently toward a resolution.
A Look Back—The 2017 ABA Study
In June of 2017, the American Bar Association (ABA) Section on Dispute Resolution issued a comprehensive report analyzing research that was conducted to determine best practices in mediation. Report of the Task Force on Research on Mediator Techniques (June 12, 2017).
Its executive summary described the purpose of the task force as follows:
The Task Force was created to learn what existing empirical evidence tells us about which mediator actions enhance mediation outcomes and have detrimental effects and to disseminate that information to the field, with the ultimate goals of fostering additional empirical research and enhancing mediation quality. The members of the Task Force include[d] mediators, researchers, law professors, program administrators, and other professionals with a range of experience and expertise.
The ABA studies covered a range of dispute types—general civil, domestic relations, labor-management, and community mediation, as well as other disputes. The studies that were conducted examined a wide range of mediator actions and styles that were organized into several categories. While a full analysis of this comprehensive report is beyond the scope of this article, the overall conclusions based on the empirical findings have been succinctly summarized by Roselle L. Wissler (principal author of the task force report) and Gary Weiner (chair of the task force) in a 2017 article published in the Dispute Resolution Magazine. Roselle L. Wissler & Gary Weiner, “How Do Mediator Actions Affect Mediation Outcomes? The Report of the Section’s Task Force on Research on Mediator Techniques Offers a Few Clues,” 24 Disp. Resol. Mag., no. 1, Fall 2017.
The report concluded that the following mediator actions “appear to have a greater potential for positive effects than negative effects on both settlement and related outcomes and disputants’ relationships and perceptions of mediation”:
(1) eliciting disputants’ suggestions or solutions;
(2) giving more attention to disputants’ emotions, relationship, and sources of conflict;
(3) working to build trust and rapport, expressing empathy or praising the disputants, and structuring the agenda;
(4) holding pre-mediation caucuses focused on establishing trust.
Report of the Task Force on Research on Mediator Techniques 51 (emphasis added).
Given the time restraints and myriad of other obstacles mediators routinely face in complex multiparty cases, pre-mediation caucuses provide additional precious time not only to achieve the potential positive effects, as outlined above, but also to enhance the mediator’s awareness and understanding of the conflict participants in order to more effectively respond, respectfully interact, and avoid negative reactions to the process—factors that serve to maximize the opportunities for attaining a successful resolution.
Best Practice?
While formal definitions vary, one of the most basic definitions of “best practices” is “a method or technique that has been generally accepted as superior to any alternatives because it produces results that are superior to those achieved by other means or because it has become a standard way of doing things. . . .”
“[T]he work necessary to deem any practice the ‘best’ is rarely done. Most of the time, one will find ‘good’ practices or ‘smart’ practices that offer insight into solutions that may or may not work for a given situation.” Eugene Bardach, A Practical Guide for Policy Analysis: The Eightfold Path to More Effective Problem Solving (Sage 2011). Given the difficult threshold to achieve a “best practice,” perhaps the more appropriate question to ask at this juncture is whether pre-mediation caucuses constitute a “good” or “smart” practice. Based on personal experiences, the answer would be a resounding yes.
Final Thoughts
Webster’s New World College Dictionary defines “Art” as “any specific skill or its application . . . creative work or its principles . . .”
Mediation is indeed an art form. As such, it should be approached by mediators with unbridled enthusiasm and passion. The process provides a blank canvas, and the mediator is afforded the privilege of selecting the palette of colors that will be applied. As with any art form, innovation and creativity are the measures by which the mediator will be judged. Being able to draw distinctions among the strategic, practical, and psychological aspects of a negotiation is a fundamental requirement for the mediation to be successful. Once these distinctions are accurately identified, the mediator has wide latitude to create a template for the mediation design that can serve to truly facilitate the desired results. By planning an approach to the negotiation that focuses beyond the parties’ stated positions and explores a critical dimension of the relationship—their underlying needs and shared interests—the mediator can create new possibilities as well as new realities. The common denominator for positive outcomes, no matter the dispute, is proper preparation, effective communication, and the parties’ trust. Mediators can use every case they mediate as an opportunity to educate participants about the benefits to an approach that creates new viewpoints and opportunities not only to achieve the resolution of disputes but also to bring about peace and harmony.
