Parties seeking to settle a lawsuit often choose to engage a mediator because of the value added. Mediators coach in negotiation strategy, educate by reality testing, and importantly manage the process. Mediation is endlessly flexible, and process is an important tool with many options. Mediators regularly consider whether and when to hold a joint session. How to structure a joint session. When to break into private caucus and when and how to move from risk analysis to value claiming.
Other process issues, especially relevant when all parties are represented, include whether to speak to a lawyer outside of the presence of the party, whether to speak with a client outside the presence of the lawyer, and whether to hold a lawyers’ caucus or a parties’ caucus. This article will discuss these process issues, some of which mediators should always consider, and others that mediators should avoid.
For over three decades, I have mediated various commercial, employment, securities, and other matters involving large financial claims and settlements. In cases involving substantial claimed dollar losses, all sides are usually represented by counsel. When parties are represented, lawyers occasionally ask a mediator to speak with their clients directly, without the lawyer present. In this scenario, counsel tells the mediator to share their candid views of the merits directly with the client and outside counsel’s presence. In this situation, the lawyer literally leaves. Although extremely rare, this actually happens. I have no idea why the lawyer thinks this is a strong choice. I do not. As for the lawyer’s motivation, I assume he or she is frustrated with a difficult client, but I don’t see that as a good reason to leave the mediator alone with the client to either present a directive evaluation or even to more indirectly reality test. Why wouldn’t a lawyer want to hear what the mediator is saying to the client regarding the risks of taking a case to trial? What client feels better when the representative they are paying leaves them alone to listen to a mediator forcefully challenging the client’s view of their case?
When in private caucus, I always prefer to speak to a client with their lawyer present- period, stop. In my opinion, there is no good reason why the lawyer should not be there, and many strong reasons why the lawyer should be there. Reality testing is an analysis, not a prediction, and I always welcome the participation and perspectives of counsel and the client in this exercise. I believe a client benefits most when the mediator leads an open discussion rather than making a speech. Telling is never as effective as gently and more indirectly questioning and guiding. And importantly, I never want to say anything outside the presence of the lawyer that I wouldn’t say in the lawyer’s presence. Nor would I want to give that impression. From the lawyer’s perspective, the lawyer should always know what I say and how their client responds. And the lawyer’s participation is welcome regardless of whether they agree or disagree with what I am saying. I would never initiate a private caucus with a represented party without counsel present. I always strongly discourage this configuration.
I may, however, seek permission from counsel for parties to meet with other adversarial parties privately in a “parties’ caucus.” In a parties’ caucus, the parties speak directly without their counsel present. The objective of a parties’ caucus is for a safe, fair opportunity to speak directly about emotions and interests. It is not a legal discussion of the merits. This is done only with the consent of counsel for all participating parties, and always with pre-established acceptable parameters for the discussion. No surprises! As the mediator, I always participate in a parties’ caucus, although in a parties’ caucus my role is facilitating communication and understanding. I keep the conversation fair and appropriate—as agreed to in advance and never engage in any reality testing.
A parties’ caucus can be critical to the process. An example of where this type of caucus might be called for is in a dispute among family members in a closely held corporation. One such case I mediated involved parents who were litigating with their adult children over the management of their jointly owned business and the terms of its dissolution. As with many of these cases, the conflict was profoundly personal, and these parties were emotionally wrought. In this particular case, the adult children were preventing their parents from seeing their grandchildren. This non-legal fact was an impediment to resolving the legal dispute. The face-to-face conversation was a safe opportunity for the parties to speak to one another as a family rather than as litigants. They shared with one another the intensely mutually painful consequences of their dispute. With my assistance reframing and refocusing, parents and children spoke to one another and, even more importantly, were heard by one another. In this case, the direct communication between parents and adult children regarding a shared love of the children was critical to resolving the legal dispute. A parties’ caucus, when done appropriately, can be an important process choice.
Another option with represented parties is the lawyers’ caucus. A lawyers’ caucus is when lawyers for all parties speak together without their clients. Again, I am always present at a lawyers’ caucus, although I rarely need to speak. I have found that the dynamic changes when the lawyers meet with opposing counsel outside of the presence of their clients. Often, the temperature comes down, and there is less “show” and bravado. When speaking directly, the lawyers often share their frustrations and honestly identify impediments to overcome to reach a settlement. Even if a lawyers’ caucus does not itself produce a resolution or break an impasse, usually trust is restored between counsel, which is always helpful when the negotiation resumes. Even temporarily changing the configuration can itself help to restart a stalled negotiation. Used appropriately, a lawyers’ caucus is a powerful impasse-breaking technique.
Another option is a private conversation between counsel for one party and the mediator outside the presence of that lawyer’s client. Mediators often resort to this approach when they believe the lawyer is “putting on a show for their client” and inflating client expectations rather than being candid about the risks of litigation. Or the mediator may pull an inexperienced lawyer unfamiliar with a particular area of practice in order to educate that lawyer outside of the presence of his or her client. This is often referred to colloquially as “pulling a lawyer out of the room.”
A mediator pulls a lawyer out of the room, believing that a frank conversation with an obstreperous or inexperienced lawyer will persuade the lawyer to moderate their approach or provide the enlightenment necessary to advance the process. A mediator may pull a lawyer out of the room to warn the lawyer that he or she is potentially dooming the mediation with tactics and bluster. Or to highlight gaps in the lawyer’s knowledge. These conversations are often direct and confrontational in contrast to the more nuanced indirect questioning a mediator might use with the client present. In the hallway, with just the lawyer, is where “head banging” or directive conversations may take place. It is intended to persuade the lawyer to be more realistic with his or her case and with his or her client.
Although the mediator’s objective may be to discourage a lawyer from “putting on a show” to impress their client or to educate an ignorant one, it is almost impossible to accomplish either of these objectives alone with the lawyer in the hallway. When an advocate returns from a private meeting with the mediator, the client will wonder whether the mediator and the lawyer have conspired against the client. The client may lose trust in the lawyer and the mediator. Therefore, this approach actually does the reverse of what the mediator wants to do. It gives the lawyer even more reason to resist any change in approach or to adopt a mediator’s perspective.
If a lawyer has need for education, speaking with the lawyer in the hallway can only do so much. First, the lawyer will be unlikely to confess they are unprepared or ignorant of the practice area. Second, the newly educated lawyer will not walk back into the caucus room with their client and promptly confess they now understand the case. And third, when a lawyer needs educating, it is likely that the client also will need educating, and the newly enlightened lawyer, even after speaking to the mediator, is the wrong person to educate the client. Rather than educate a lawyer in the hallway, any education that needs to take place should take place in front of the client. For the mediation to succeed, the client, qua decision maker, and not just the lawyer, must be informed. Therefore, the skilled mediator will not pull a lawyer into the hallway but instead will educate both the lawyer and client together with indirect questions that cause the light bulb to light over the heads of both the client and the lawyer.
Similarly, rather than pull the obstreperous lawyer into the hall, the better choice is patience and perseverance. After all, it is not what the lawyer says in front of the mediator that really matters. When the mediator pulls a lawyer into the hallway for a candid conversation, the lawyer may heartily agree and acknowledge the existence of weaknesses with the case and the need to avoid trial. That approach is counterproductive if it causes the lawyer to feel even more obliged to put on a show for his or her client after returning from a talking to by the mediator to demonstrate to the client that the lawyer remains on the client’s side even in the face of the mediator’s pressure.
What matters after all with the blustery lawyer are the candid private conversations between attorney and client. For good lawyers compelled to put on a show, I trust that, regardless of what is happening in my presence, frank conversations regarding issues I have identified are taking place between the lawyer and the client outside of my presence. I encourage mediators to pay more attention to what is happening than to what is being said. Despite the sturm and drung in the caucus room, you will know that the lawyer is being candid with the client in private by focusing on the messages being conveyed in the negotiation—i.e., to the offers and demands being exchanged—rather than to the distraction of the “show.” At the end of the day, what the lawyer and client say in front of me matters less to the success of the mediation than what they do in terms of offers and demands.
Since it is unlikely that pulling a lawyer into the hallway will accomplish the objective of educating a lawyer or changing a lawyer’s behavior, there is no strong purpose in this process choice. Given the risk that this approach may cause the client to lose trust in the mediator and to feel conspired against, there are also risks with this approach. Therefore, I believe that- however tempting- pulling the lawyer out of the room is rarely a good choice.
The above advice is general as to process. The implementation of these different configurations will, of course, be different if the mediation is in-person, video remote, or on Zoom. From a technical standpoint, a mediator working in person should anticipate the need for extra space to hold additional caucuses. I have rarely had a problem. I have always been able to find an extra office, or, while not always ideal, I have held an extra caucus in the law firm kitchen. Parties can be asked to leave a room to allow for a lawyers’ or parties’ caucus. There are many creative ways to find space. When mediating online, the process is even easier. The mediator should always set up extra breakout rooms and be facile at moving parties from room to room.
A word about modes of communication. Mediating on Zoom is different from mediating in person, and not just because of the technical aspect. The modes of communication are different, although not necessarily better or worse than one another. Face-to-face mediation is the richest mode of communication. Parties are able to utilize all of their senses and encode and decode non-verbal messaging. Rapport can be established more organically through gesture -- a gentle hand on a shoulder or a handshake. Building rapport and sending and receiving non-verbal information is more challenging and intentional when communication is on Zoom. However, the pacing can be more relaxed. Parties tend to be more comfortable. There can often be fewer issues with having actual settlement authority participating. These advantages can also reduce the tension of the mediation experience, which helps with creative thinking and decision-making. While I absolutely think mediators need to adapt to the differences in their communication techniques, my advice as to process does not change based on the mode of communication. In all mediations, these decisions to use these different caucus formats are judgment calls based on the dynamic, the timing, and the particular objective. The mode of communication, while also a consideration, is rarely, in my experience, a hindrance.
As is stated above, this article addresses techniques for mediators working with cases where both sides are represented by counsel. Dealing with pro se parties is its own very specific situation, especially when there is a power imbalance because only one side is represented. As a general rule, the above techniques, a lawyers’ caucus, a parties’ caucus, and meeting with a party privately do not apply to an unrepresented party. Given that there is no representative to give consent, I would be extremely careful about suggesting a caucus between parties, excluding the one representative. The most obvious risks are of a more sophisticated party trying to take advantage of the unrepresented party for free discovery or to intimidate. I would not rule it out, but it is a judgment call that would depend on the circumstances and the objective of calling for a parties’ caucus.
Mediators bring value to the parties’ negotiation in a variety of ways. Process is a valuable tool, and mediators should make full use of it. Mediators should also be wary of process traps. Process is one of several important tools that mediators should understand and use to bring value to the parties’ negotiation and to assist parties seeking to resolve the most challenging of disputes.