In installment IV of our ongoing mediation case study, we saw Derek and Stacey participate in a “caucus” when their child custody discussion became heated. If you are considering mediation in your own divorce case, you might be wondering exactly what a caucus is, and when it is most likely to be appropriate in mediation.
Private divorce mediation typically consists primarily of joint sessions. The divorcing spouses remain in the room together and the mediator helps them communicate directly with each other. Not surprisingly, this kind of communication is sometimes difficult, particularly if the spouses have gone through a period of high conflict leading up to the divorce. There may be fear on the part of one or both parties regarding the other party’s trustworthiness, openness, or ability to communicate in a civil manner.
One of the mediator’s most important functions is to help the parties handle difficult emotions. In an ideal situation, they will be able to remain in the session together and work out their differences face-to-face. Sometimes, however, negative feelings threaten to overwhelm productive discussion. Working through a divorce means working through sensitive information. The two people involved may have different ideas about what information is significant. One spouse may feel hesitant to reveal something if it seems unimportant, or if there is great anxiety regarding the other spouse’s possible reaction. If a particularly troubling topic is on the table, or if something new is revealed unexpectedly, emotions can escalate quickly in unanticipated ways. Sometimes even when communication seems to be completely open and honest, the divorcing spouses still lapse into old patterns of negative interaction and have difficulty breaking free of such patterns, even with the mediator’s assistance. These are some of the circumstances that might give rise to the need for a “caucus.”
A caucus consists of private meetings between the mediator and each participant. Either party can request a caucus at any time. The mediator can also request a caucus if it seems appropriate. Caucuses are usually held immediately upon request. There are no time limits on caucuses, nor are there limits on the number of caucuses during any particular mediation. Depending on the dynamics between the participants and the mediator’s personal style, a caucus might be a one-time occurrence, or something that is utilized several times.
It is crucial for parties to understand that the mediator will always remain completely neutral, even while conducting a caucus. This means that if one party requests a caucus, the mediator will follow up by offering the other party comparable time. This rule extends to all communication between the mediator and the parties. For example, if one party calls the mediator between sessions, the mediator will ordinarily consider that a caucus and will contact the other party and offer an opportunity to discuss the same topic.
Barring serious concerns regarding safety or legality, your mediator will hold all information in strict confidence and will not share anything that you convey during a caucus without your consent. Confidentiality is an important aspect of the mediation process, and your mediator will review the rules regarding confidentiality during your first session. Be sure to ask questions if you feel uncertain about how and when these rules will come into play. In a divorce mediation, it is very important for both spouses to understand not only what kind of information will be held in confidence, but also what kind of information must be shared with the other party.
The mediator’s job is to help you transmit information to each other in the most useful and collaborative fashion possible, and help you find common ground. A caucus is just one tool available to help with this process.
Are you interested in mediating your divorce? Please contact us to schedule your free mediation consultation with one of our experienced divorce and family law mediators.