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Why Not Divorce Mediation by Caucus?

May 13, 2018

When it comes to divorce law, there are a variety of dispute resolution options, including negotiations, litigation and collaborative law. Mediation is among these options, too. If a couple decides to use mediation in order to handle and settle divorce issues, that means they want to deal with everything outside the courtroom. They will come together, along with a neutral party (the mediator), to work out their issues and figure out how to handle their divorce.

Alternative Type of Mediation

There is a certain style of mediation called mediation by caucus, or caucusing. This type of mediation requires separate meetings with the mediator for the parties (one for the husband and one for the wife, for example). These meetings are private – for example, the wife would not be present at the husband’s meeting.

It’s common for professionals to use caucusing a time or two during divorce proceedings, namely when there is a large issue at hand that needs to be dealt with. Other professionals, though, opt to use mediation by caucus throughout the entire process.

Problems with Mediation by Caucus

Professionals who utilize mediation by caucus may face problems:

• Since neither party knows what is happening in the other party’s meetings, it’s difficult to see the mediator as neutral ¬– one party may feel that the mediator is swaying toward one side instead of staying in the middle. This can lead to anger or paranoia.

• There is no more intimacy in the mediation and negotiations. The parties are not able to deal or work with each other, which is especially troublesome when it comes to disagreements. Instead of being able to directly speak with each other to hash the problem out, the mediator has to shuttle between the parties to deliver information and offer suggestions.

• By the end of this type of mediation, it’s common for one or both parties to still have lingering questions, and those questions may never be answered.

It may not be the best solution to have the mediator be the only person who has all of the information in the case. When this happens, it’s possible for one or both parties to feel left out or like they’re not being represented well or accurately.

Sometimes, one or both parties end up feeling like they no longer have control in the divorce decisions, because the mediator has all of the information and is relaying all of the information. This can leave some people feeling like they’ve been manipulated. It’s often better to air concerns and have discussions in an open setting, directly with one another instead of in private with a mediator.

Using Mediation by Caucus Sparingly

Instead of using mediation by caucus as a full-time strategy, some professionals opt to use it only sparingly. For example, if there is a situation where one or both parties are incredibly angry about something and they feel like they need to vent before they can move on to problem-solving, the professional may opt for caucusing so that the party can air their issues in private, and without it affecting the rest of the negotiations. However, even then, some professionals feel that caucusing isn’t transparent enough, and that it would still be better for high-conflict divorce issues to be dealt with in person.

The Benefit of Traditional Mediation

For most professionals, mediation is ultimately about remaining neutral. The mediator is able to give the client a safe, neutral space where they can connect with the other party and know that their concerns are being heard. As soon as one party feels any sort of bias from the mediator, that air of neutrality is gone, which makes it extremely difficult for either spouse to trust the mediator and move forward.

Mediation can be highly effective if both spouses feel that they’re getting the same type of attention and level of interaction from the mediator, and that the mediator is always remaining neutral. Yes, it’s definitely possible for the mediator to give clients equal time during caucusing, but the privacy of the meetings can make one or both parties feel that the meetings are secretive and suspicious, and it could leave one of them feeling like they’ve been cheated out of something they want or deserve.

The point of mediation is to prevent or resolve conflict. Caucus mediation can pose issues that are just added to the list of problems and concerns the spouses have, and it becomes another issue that needs to be dealt with (if it even can be).

It’s important to keep in mind the main goals of mediation: to collaborate in a joint situation where each party can clearly represent themselves, and where a mediator remains neutral, guiding the clients so that they can come to peaceful decisions. Since it’s not possible to know what happens behind closed doors in private meetings, caucus mediation can go against the basic principles of mediation. The point isn’t to prevent mutual agreements but instead to remove any barriers to getting to them.

Help With Divorce Law

If you are going through a divorce, contact the experts at the Spodek Law Group, your Long Island divorce lawyers. We can discuss mediation options with you, as well as other divorce services. Feel free to come in for a consultation, either alone or with your spouse.

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