Friday, December 15th, 2017

Private Caucusing in Mediation Offers You Options

August 28, 2013 by  
Filed under Newsletters

Our Methods of Confidential and Effective Dispute Resolution

When you are involved in a legal dispute, litigating the case all the way to trial, besides being very expensive, is always risky. Parties that have already entered litigation who wish to explore alternatives while the case is pending will often consider mediation.

At mediation you can disclose as much as you want about your position, needs and interests, and you can preserve more of your confidentiality.

Mediation will usually begin as a joint session with both parties, their attorneys and the mediator. Often, joint session mediation breaks out into separate private sessions, or “caucuses.”

Private Caucus Mediation for Heated Disputes

Private caucus mediation is useful for highly-contested disputes or in situations where the parties do not wish to confront each other. Private caucus mediation is conducted in separate, private rooms. Each party occupies one room, and the mediator will lead the negotiation by speaking to each party privately throughout the session. If necessary, you can complete the entire mediation session without ever being in direct contact with the other party.

Since the mediator is a neutral party, he or she does not take sides, but listens to you for as long as you wish to speak. Unlike a judge, a mediator does not make decisions regarding the case. You can tell the mediator as much or as little about your situation as you want, along with your own goals for attending the session. Remember, no one is forced to agree to anything; mediation explores what options you and the other party may have to settle your dispute in a faster and more cost-effective manner than litigation.

Keep in mind that not all mediation goals are money-based. In litigation, money may be the only remedy a court may order under law. However, in mediation, there is an opportunity to agree upon courses of action that may be mutually beneficial, in addition to or in lieu of money settlements. For example, if your case involved an employment law dispute, an employer may agree to reinstate a job position or change a poor policy. Remember, mediation is not a zero sum game[1]—both parties can work to satisfy their true needs and interests.

Two Approaches to Confidentiality in Private Caucus Mediation

There are two general methods regarding confidentiality in private caucus mediation. In the first approach, which is the most common method, you assume that everything you tell the mediator to be “on the record,” or fair to disclose to the other party. In this method, you must specify when you want the statement or information to be kept confidential. By offering a full disclosure of your side of the story, you could facilitate an open dialogue. Even in this first method, it is important to remember that negotiations in mediation remain inadmissible in court. This method is the simplest most effective, as it promotes openness.

In the second method, everything you tell the mediator is confidential and will not be disclosed without your explicit approval. In this approach, everything will be kept confidential from the other side unless you say otherwise, but the mediator understands both parties’ priorities and positions. With this information, he or she can present solutions that both parties might find acceptable.

Both approaches have value, and every case is different. Whether you are thinking about filing a court case regarding a dispute or if you are already heavily involved in litigation, mediation can be a worthwhile option. Mediation offers flexibility and input into the process used to achieve resolution as opposed to litigation, where the process is controlled by the Court.

Kevin Coleman is a certified mediator who performs mediation services throughout the San Francisco Bay Area, including San Francisco, Marin County, Alameda, Contra Costa, Sonoma, outlying counties and throughout the state.

Contact Bay Area mediator Kevin Coleman online or by calling 415-488-7609.


[1] A zero sum game is defined as one party’s win that is offset by another party’s loss; i.e. if I win, then you must lose the equal value of my gain.

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