Should We Try Divorce Mediation By Caucus?

When Is Caucusing Considered in Divorce Mediation?

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.

When Is Caucusing Considered?

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.

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.

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.