1. To Caucus or Not to Caucus: That is the Question
Mediators’ Institute of Ireland
Workshop – Carrie Menkel-Meadow
October 14, 2016

2. What are our Purposes? No-Caucus
Develop mutual understanding
Improve relationship
“Solve” the problem (integrative, distributive, mixed problems)
Learn about other people
Learn about our selves
Learn how to negotiate/solve problems
Improve decision making/options-more heads in the room
Collaboration
Other?

3. Purposes? Caucus
Learn confidential information (confidentiality agreement monitoring)
“Real” needs and interests
Search for new/riskier ideas
Test ideas
“Broker” agreements (“selling”)
“Threaten” or “Promise” (muscle mediation as in shuttle international diplomacy
Prevent/reduce violence/hostility/dangerous confrontation

4. Context Matters! Different Kinds of Problems: Different Kinds of Process : Case Types Matter!
Work of Greg Rooney, based on David Snowden & Mary Boone “cynefin framework”= multiple factors in environment = different kinds of processes for decisions
Simple- “best practices” past, analysis, categories
Complicated- “good” practices, many solutions, experts
Complex- emergent, innovation, novel ideas, flux and flexibility, trial and error, diversity of approaches =interaction of many parties = contingent “solutions”
Chaos – rapid, staunching violence, harm, whatever works, multiple choices, leadership coordination, not “business as usual” and no recipes

5. Examples: Diplomacy George Mitchell in N. Ireland peace talks vs.
Richard Holbrooke in Dayton Ohio
Relationship vs. “task” deal mediation
Stop the killing= goal
“Sustainable” (implementable, buy-in) agreements
See Curran, Sebanius, Watkins, “Two Paths to Peace” Neg. J. 20: (2004)
Jimmy Carter at Camp David 1979 (see Lawrence Wright, Thirteen Days in September (2014)

6. Examples: Family law Separate for safety (when necessary)
Confidential information
Reframing toxic statements of issues
Learning necessary information (abuse, financial issues)
Probing for information (duties to reveal financial and other issues)
“Trial” balloons of ideas
Reality testing
Rehearsals/coaching for direct party negotiation
Planning for future

7. Examples: Community/Legal Multi-Party
Policing/human rights/community relations (CRS in US DOJ- Civil Rights Act 1964
Controversial issues (Public Conversations, community fora)
Environmental
Disasters (Arbitral/ shuttle diplomacy model of Kenneth Feinberg and others)
Class Action lawsuits

8. Together (no-caucus) Learn to frame issues to be heard
Communication building
Empathy development
Learning to negotiate directly (“with a little help from our friend, the mediator”)
Brainstorming (“three or more heads better than two”)
Joint problem solving and ownership of both process and outcomes
Check-ins
Prevents “sabotage”
“Transparency”

9. How? Tools
Opening Joint Sessions (now sometimes not the norm-Joint Session 2.0 Kichaven)
Information
Feelings
Interests
Needs
Empathy Training
“Looping” (Friedman and Himmelstein)

10. Empathy Training Party 1- statement (fact, feeling, need, solution)
Party 2- restate what you heard
Party 1- did Party 2 get that right? What is it about you/it that s/he does not understand? Restate
Party 2- again, restate
Party 1- did that express what you meant to convey? If not, restate
Party 2- how do you think Party 1 feels about that (not, what do You feel about that)– empathy, sympathy differences (“walk a mile in my shoes, with my feet”)
Party 1- does s/he get it now?
Repeat (like “role reversal” exercises)

11. Building Communication
Reframing positively (in problem-solving format)
Restating/active listening without emotional content
Restating/active listening with emotional content
Validating all levels of concern: principle, instrumental, emotional, ethical, religious, values=
Three separate discourses at once (“brain”/reason; “stomach”/needs, interests, practicalities, “heart” =values
Stance of “curiosity” and learning (not assuming) from others (and ability to change own views)

12. Three Discourses in Mediation
 Brain = Reason Principles
Stomach = Needs, interests, practicalities (“reality testing”)
Heart= values, ethics, feelings, emotions, religious beliefs, political commitments
Challenge: Putting three discourses in the room

13. Wise Caucusing Preparation– what used for? (trust in the mediator?)
Information management (note-taking)
Confidentiality agreements (what shared/what not)
“Privacy” time (Frenkel & Stark), alone time
Idea/option generation
Mediator’s “(“neutral”) proposal (counter reactive-devaluation) –”reframing” facts, conflicts and solutions
“Trial balloons”
Reality Testing

14. Dangers of Caucusing Information revelation by accident (Malpractice?)
Mediator control of process (no empowerment of parties, especially dangerous in on-going relation)
Misinterpretation and bad reframing
Diminishment of learning, empathy, communication
“Consensual deception” (Cooley, 2003)
Loss of true “understanding" of parties
Liability for “waste” left in room?
Commitment/ compliance with agreements externally created- not shared responsibility for creating agreements together– not “working together”

15. Dangers of Not Caucusing
Failure to learn important information
Keeping communication too “safe” (not going deep enough into conflict, feelings or risky solutions)
Inability to gain “truthful” reactions
Either too much or too little conflict
Failure to learn of impacts on others
Failure to unearth other more creative outcomes (sometimes)

16. Exercise: Part 1
Think of a time you learned something new from someone else
About them
About yourself
About the problem/issue at hand
About the world
How did that come about?

17. Exercise: Part 2 Partners: “I see, I imagine” Reverse
Check out assumptions

18. Exercise: Part 3
Write down techniques/ questions/ interventions you would use to get parties to test their assumptions about others
Q’s of true curiosity
Public Conversations:
What is missing in your own information?
Where do your opinions/desires/objectives come from?
What would you like to ask/know about the other party/person?

19. Research on Caucusing
Klerman & Klerman, “Inside the Caucus: An Empirical Analysis of Mediation from Within” (12 J. Emp. Leg. Studies, 2015)
Brown & Ayres, “Economic Rationales for Mediation,” 80 Va. L. Rev.323 (1994)
Golann, “Is Mediation a Process of Repair or Separation?” 7 Harv. Neg. J. 301 (2002)
Christopher Moore, “The Caucus: Private Meetings That Promote Settlement,” 16 Med. Q. 87 (1987)
Welton, Pruitt & McGillicuddy, “The Role of Caucusing in Community Mediation,” 32 Conft. Resolution 181 (1988)
Kressel, Pruitt & Assoc.,eds Mediation Research (1989)
Kolb & Assoc. When Talk Works (1994)

20. Bibliography on Mediation/ Caucusing
Cooley, “Defining the Ethical Limits of Acceptable Limits of Deception in Mediation, “ 4 Pepp. Disp. Res. J. 263 ( )
Frenkel & Stark, The Practice of Mediation (2nd ed. 2012)
Friedman & Himmelstein, Challenging Conflict: Mediation Through Understanding (2008)
Galton & Love, eds. Stories Mediators Tell (2012)
Menkel-Meadow, Love & Schneider, Mediation: Practice , Policy & Ethics (2nd ed. 2013).