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Should We Try Divorce Mediation By Caucus?

When mediating disputes during a divorce proceeding, most people agree that both parties involved in the dispute should be able to advocate for their side together to a neutral party who acts as the mediator. This can’t effectively happen when a caucus is used. In divorce mediation and family law, a caucus will take place when the mediator has private meetings with both participants in the proceeding rather than having the parties discuss their desires together. Caucuses might happen on a one-time basis, several times, or for the entire mediation process. The necessity and reasoning for a caucus varies widely from case to case. Separating clients during the mediation process can be a hassle that removes a level of the understanding and problem-solving that makes mediation ideal. Private sessions also have an added risk of making clients feel like their mediator is conspiring against them, especially during divorce proceedings that include high levels of conflict and tension.

That said, there are certain circumstances in which caucusing is an ideal mediation solution for a divorce proceeding. Divorce mediators have the responsibility of helping clients to work through difficult emotions and de-escalate interpersonal conflicts. In an ideal situation, the involved parties would discuss these issues face-to-face. But there are some instances where one party might not want to reveal important information while in the room with the other party, especially if physical violence or threats have ever been a factor in the relationship. In certain cases, even seemingly open and honest communication might hide issues that one or more of the parties are unwilling to speak up about.

When Is Caucusing Considered?

Because caucusing removes face-to-face problem solving, it should not be the go-to solution for a divorce mediator. Instead, the decision to caucus should be made only after the mediator has analyzed the circumstances and believes that caucusing is the best way to achieve further progress. Providing an opportunity to caucus might cause suspicion to begin between the involved parties, which can make the mediator appear as if they have not been transparent or neutral throughout the divorce proceeding.

There are a number of different reasons that mediators might believe caucusing is the best way forward. A mediator might choose a caucus if they believe that one party is holding back information that they want to impart but are unable to share in front of the other party. In other circumstances, a caucus might be used to relieve tension between the parties and allow clients an opportunity to vent or discuss their issues without being heard by the other client. Sometimes caucusing can be used to test potential alternative solutions with each of the parties separately, or to give one party a possible coping suggestion. It should be noted that giving coping suggestions to one party and not the other does remove the neutrality element of mediation.

You might consider using caucus in your divorce mediation for the following reasons:

  • You need to take a quick break from a situation that is filled with tension
  • You or your spouse needs to give the mediator information that cannot be shared in front of the other party

Sometimes a caucus is appropriate when a mediator’s intervention might make one client look uncertain or weak in the other client’s eyes. Maintaining composure and strength is difficult when talking about issues and discussing concerns with your ex-spouse. These additional reasons might be reasons to consider caucus:

  • Caucusing gives a safe solution when one party needs to discuss past threats, violence, or fears about abuse or violence being instigated by the other party
  • Caucusing allows parties to think about painful revelations and to process information that has come up in private, so they don’t look weak in front of the other party
  • Caucusing lets the parties explore their goals and discuss their desires in a fuller manner, and the parties can then consider solutions to the negotiation while still “saving face” with the other party

Caucusing Controversy

Caucusing is a controversial approach to divorce mediation. Many mediators use caucusing only as a last resort rather than a first resource. Some lawyers hold that by separating the parties involved in a divorce proceeding, caucusing inherently undermines the transparency and neutrality required by a mediator. Even if the mediator discusses exactly the same issues with both parties, the parties have no way of proving that they have received the same neutral counsel, which can sow distrust and suspicion.

Mediation is meant to help the involved parties come to a compromising solution that helps everyone feel like they’ve been heard and understood. This kind of open and honest communication cannot be done through caucusing, because the involved parties are only talking to the mediator rather than each other. It can be hard to come up with an ideal compromise when there isn’t any face-to-face discussion. Multiple meetings with each individual also have the potential to soak up precious time and resources that wouldn’t be used if the parties would be willing to have a conversation together.

The risk with caucusing is always the removal of the mediator’s neutrality. This means that each party might walk away from the mediation process believing that they have not been fully heard or understood by the other party or by the mediator. Mediation is meant to end with both parties feeling that their concerns have been fully met and addressed.

We are a group of New York lawyers who specialize in divorce proceedings and litigation. If you have questions about divorce mediation and the potential for caucusing during mediation, please feel free to give us a call.

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