While the joint session aims to facilitate negotiation, counsel's duty to advocate for their clients can make it challenging to fully consider opposing viewpoints. Too often, parties mishear or misunderstand what the other party has to say, which can harm their ability to reach a resolution. A caucus is a perfect time for the parties to reflect on the other side’s interest and positions and to explore new options. The mediator will also be able to directly challenge or question the party’s fixed position without the other party present.
In certain instances, a mediator may conduct a caucus prior to the commencement of mediation. These pre-mediation caucuses can assist mediators in gaining a deeper understanding of the dynamics of the dispute, identify common interests between the parties, and assess each party's relative strengths and weaknesses—information often not revealed in confidential mediation statements.
Although a caucus can be a powerful tool, caucusing can pose a danger to the transparency of the mediation process if employed incorrectly. Prior to the first caucus, the mediator should set ground rules, communicate their expectation, and demonstrate neutrality.
In Delaware, many magistrate judges, including former Chief Magistrate Judge Thygne, will instruct parties during caucus sessions about the confidentiality of information shared. Unless specifically instructed otherwise by counsel or a party representative, the mediator may disclose information from a caucus to the other side if they believe it will facilitate a resolution.
A caucus, when strategically employed, fosters openness and candor in a safe and confidential setting. Active engagement in the caucus process, coupled with collaboration with the mediator, enables parties to efficiently ascertain whether mediation will result in a settlement.
