There are certainly many different styles of mediation. Too many lawyers have defined mediation to be a process similar to a settlement conference. I don’t have research yet to back me up on this, but I’m personally convinced that caucus-style mediation takes too long, costs too much, and shifts too much power from the husband and the wife to the lawyers and the mediator. I believe it eviscerates the true power of the mediation process — robbing parties of the chance to collaborate on strategies that can help both of them get on with their lives.
To many lawyers, the way to do divorce mediation is only after an exhausting and expensive trip into the Discovery Money Pit. Only after both sides and have spent thousands of dollars gathering information, interviewing witnesses, probing through records, and preparing their cases for trial, is the case ready for mediation. The mediator gets “position statements” from each party’s lawyer before the mediation begins, which may or may not be shared with the opposing side. After a brief introductory session with everyone present, the mediator puts the husband and his lawyer in one room and the wife and her lawyer in another room. The mediator then shuttles between the rooms, carrying messages, proposals, and other information back and forth.
In each caucus session, the party and his or her lawyer (more frequently the lawyer) communicate with the mediator, explaining their side of the controversy, defending their side’s position, and discussing various options for settlement. Then the mediator and the lawyer decide exactly what should be shared with the other side. The process repeats itself in the other party’s caucus room.
The process can take many hours – almost never less than six or eight hours, frequently as long as 15-18 hours – until an exhausted husband and an exhausted wife finally give in and reach agreement.
Gladiators who spend lots of time in adversarial divorce often love caucus-style mediation. Gladiators are accustomed to settling cases in the hallways of the courthouse — “Heartbreak Hall.” Because caucus-style mediation is so similar to the dynamics of the settlement process in Heartbreak Hall, it feels natural and comfortable to gladiators.
It doesn’t bother gladiators to spend hours of concentrated time negotiating a case. In fact, this kind of process is far easier for a gladiator to manage than one where negotiations are intermittent. A typical gladiator schedules his or her time in blocks of 1/2 days or whole days, in anticipation of settlement conferences, negotiations, or trials. To a gladiator, scheduling a two hour block of time during which the husband and wife make as much progress as possible and then agree to continue later feels unusual and seems unproductive
Gladiators often complain about the conflict between the husband and the wife getting in the way when they are in the same room. “We need to separate them so we can make some real progress” is the chorus I hear repeatedly. They’re so cute. What gladiators don’t realize is that it is they who are generating all that conflict, not the husbands and wives they represent. When I work with two spouses in the same room who have both made the decision to come to mediation, it is a rare event indeed for them to allow their conflict to interfere in any prolonged way with progress in mediation. It happens every now and then, but not often. Add a lawyer for either party to the room, and the likelihood of conflict increases dramatically. Add a lawyer for both sides, and it’s a virtual certainty.
Nevertheless, gladiators don’t see what I see. They see that every time they and their client get in the same room with the other spouse and the other spouse’s lawyer, conflict escalates. Therefore, they tend to prefer keeping the spouses in separate rooms.
Gladiators also love caucus style mediation (or more precisely dislike my preferred style of client-focused mediation) because it gives them less power. To a gladiator, the thought of one’s client negotiating directly with his or her spouse is disquieting. They prefer to be playing the role of gatekeeper, helping the client decide what to demand, what to give up, and what to admit. Caucus style mediation helps lawyers stay in control.
Finally, most lawyers know that they are far more likely to get paid after a mediated settlement than after a trial. It’s the nature of a trial that neither side is likely to be happy with the result. In mediation, by contrast, the parties have (at least theoretically) made a free and voluntary decision to settle on the designated terms. This means they’re more likely to be willing to pay their lawyer for the time the lawyer has spent. And the fees lawyers get for caucus style mediation are whoppers. Think of a case that takes two hours to prepare and 10 hours to resolve, with the lawyer billing at $250 per hour. You do the math. That’ll buy another granite-top conference table and leave enough left over for the Beemer payment.
Can you tell already? Here are the reasons:
It takes too long
First, advocates of caucus-style mediation rarely want the mediation to begin until after exhaustive discovery. As you may already have learned from reading the Discovery Money Pit, this is rarely necessary. The process of generating, answering, and interpreting answers to interrogatories and requests for production, and the process of scheduling, taking, and interpreting depositions can take months, sometimes years. The meter runs, the parties fume, the issues fester. Better to use a financial preparation kit likeDivorceSavvySavesMoney and get on with it.
Once mediation begins, the mediation process itself takes too long. Each party (or more typically, each party’s lawyer) has to lay out his or her side’s reasons for the position they’re taking. Whether they should or not, lawyers tend to treat the mediator as a judge who will decide the issue, so they want to convince the mediator. Then the mediator goes to the other room and repeats all the arguments to the other side. Then the process repeats itself. Interminably.
It costs too much
This one is obvious. You or your spouse, or both of you, pay each of your attorneys for that leisurely trip into the Discovery Money Pit. Then you pay each of your lawyers and the mediator their hourly rate for the duration of the mediation session. When mediation takes 10-12 hours, that’s a lot of money. There go those savings you thought you were going to enjoy from using mediation!
It pushes the parties to positions
Take it to the bank. There’s just something about the process of separating people physically. As soon as you move the husband and his lawyer into one room and the wife and her lawyer into another, from then on, you’re just exchanging offers. There’s no more trying to explore ways you can accomplish your goals in a more imaginative way. No more creativity. No more thinking outside the box.
Each party just works to defend its position as much as possible. And the mediator works to find a compromise that both parties can accept. They may reach agreement, but it will be an imperfect agreement conceived in compromise, leaving both parties with that “I gave in” feeling.
It shifts too much power from the husband and the wife
The mediator in caucus-style mediation first hears the position of one of the spouses and his or her lawyer (usually the lawyer). The mediator captures as much as possible of the essence of that position, then carries it to the other party and their lawyer. Each time this process is repeated, it’s the mediator who defines the issues, the mediator who explains the positions, the mediator who declares what’s flexible and what’s not.
I don’t care for that power. I’d rather leave power in the hands of the husband and the wife. They need to articulate their own goals and desires; they need to search for flexibility in their own and in each other’s perspectives. When I’m doing my job as a mediator, I’m just a facilitator who helps husbands and wives come up with their own plan for ending their marriage. I can’t play that role in caucus-style mediation, because the process steals too much power from the husband and the wife and forces it on me.
It’s unnecessarily artificial
The issues you and your spouse face now are complex and challenging, but they’re not the only issues the two of you will face. There will be other issues that pop up later, particularly if you have children. One of the advantages of true client-empowered mediation is that it helps you and your spouse learn ways to resolve issues you will face later, hopefully without any help from people like me. Caucus-style mediation doesn’t help you with this at all. You basically just sit there while your lawyer defends your position, and you don’t even talk to your spouse.
Because caucus-style mediation takes so long, because it costs too much, and because it robs the parties of power, it rarely is in the best interests of husbands and wives to engage in it. It just doesn’t make sense.
The reason I think it’s abusive, though, relates to the time periods involved. A typical caucus-style mediation continues for eight hours or more, and it’s not unusual for one to run 12-15 hours. By then the husband and wife both are exhausted. They’re sick of the whole process. Of course they reach agreement. Who wouldn’t by that time, just for release from the purgatory of the settlement process?
Call it by any accurate term. Call it client abuse. Call it torture. Call it no-agreement, no-rest. Call it the settlement conference from hell. Call it a great way to spend a lot of money on your lawyers and your mediator. But please don’t call it mediation. It’s not. At least not in the way I understand mediation.
Whenever I’ve allowed mediation sessions to go permanently into caucus style, I’ve regretted it. The only time I do caucus-style mediation now is when there is domestic violence ongoing (and only just long enough to get both parties safely out of my office — I’m not equipped to mediate in the presence of ongoing domestic violence); or in a rare case when I need to meet privately with one or both of the clients before we return to joint session. Otherwise, I simply don’t do it. If a couple insists on caucus-style mediation (and it usually comes from their lawyers, not from the spouses), I refer them to other mediators who are more comfortable with that style, and then I say a prayer for them.