Caucus

• Author: JOHN HOLLANDER
• Pages: 59-91

caucus

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chapter three

Caucus

What Is a Caucus?

   begins with a plenary

session in which all parties and lawyers are present, the

heavy lifting in mediation usually takes place in the cau-

cus room. A caucus is a meeting in which some parties are

excluded. e mediator participates in each of the caucus

rooms, moving between them to bring the parties closer

together.

Consider the experience of Dr. Henry Kissinger as he

tried to bring representatives of the Palestinian Liberation

Organization and the Government of Israel together. e

leaders of the parties could not stand to be in the same

room together; and indeed, for much of the negotiation,

they could not stand to be in the same country together.

Dr. Kissinger ew between cities and then walked from

cabin to cabin at Camp David. Two steps forward, one

step back. It is reported that he made promises to one side

that he did not disclose to the other. It is distinctly pos-

sible that he had no intention of carrying out some of his

promises. Whatever it took to bring the parties together,

   



that is what he was prepared to do. Mediators normally

participate in “shuttle diplomacy.” It is quite rare that the

negotiation takes place in the plenary session with parties

who face each other.

Why Bother?

   prying eyes of the opposition, each party

can fully explain the reasons and the interests that lead to

a particular position. One spouse may be more interested

in custody of the children, whereas the other spouse may

be more interested in property issues; one contracting

party may be interested in getting the job nished, and

the other is interested in being paid; one party to a tort

action may be interested in the precedent set for other po-

tential claimants, and the other is interested in reducing

the risk of failure before a jury.

In the caucus room, the mediator can explore the fac-

tors that drive a party to take its position. e mediators

can then seek to accommodate factors that may or may

not overlap as between the two or more caucus rooms.

About This Chapter

   some of the techniques for law-

yers and for the mediator to use during the caucus phase

to advance the prospects for a successful mediation. ere

is some overlap between this chapter and chapter four,

which deals with negotiation tactics. For the purposes of

this chapter, the focus is on the caucus and the absence of

the opposing party from the immediate discussion.

caucus

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is chapter canvasses several issues that arise from

the fact that parties meet separately in caucus.

• What can parties discuss in the absence of the op-

position that they cannot discuss when they are all

together?

• When should the mediator not be present for part

of that discussion?

• What should occur in a caucus room when the

mediator spends time in the opposition’s caucus

room?

• Given that the mediator can only be present in

one room at a time, what can the mediator do to

prevent the other room from growing cold?

• Mediators have to confront the question, “What

can I tell the people in the other room?”:

»What drives this question?

»What should be the default answer?

As with the chapter on preparation, lawyers in the

caucus room should consider what is occurring in the

other caucus room; for example, how can they best ac-

commodate the viewpoint of the other caucus room? e

objective is always to settle within an acceptable range.

What message can best communicate to the opposition

the willingness to accommodate that viewpoint, and yet

stay within that range?

Why Caucus?

   from the rst day of law school

that some things that pass between a lawyer and a client