A Call for Feedback on the Handling of Information Shared in Caucus

Mediator Practices and Perceptions (Part 2):

By: Tom Stipanowich, IAM Honorary Fellow & Karinya Verghese*

Email: Thomas.Stipanowich@pepperdine.edu & karinya@karinyaverghese.com

Posted: May 25, 2016

As a recap (or for new readers) Tom’s recent article titled “Insights on Mediator Practices and Perceptions,” outlines three areas of apparent regional divergence in mediation practice, arising out of the 2014 survey conducted by the IAM and the Straus Institute for Dispute Resolution, Pepperdine School of Law. The divergent areas include: (1) the relative use of joint session and caucus in mediation; (2) the way in which mediators handle information divulged by the parties in caucus; and (3) the extent to which mediators provide case evaluations and opinions. The article was featured in the American Bar Association Dispute Resolution Magazine, Winter 2016, and the full text (6 pages) can be found HERE. 

In our last post, we elicited your views on the use of joint session and caucus. This post focuses on the way in which mediators handle information shared by the parties in caucus. Again, it is our hope that you will read the relevant extract from the article below, look at summary data Table B and respond to the question raised at the end:

The survey also reflected mediators’ varying approaches to handling information received from parties in caucus. As shown in the first line of Table B, the overall response is again broadly diverse. Our data indicates that some respondents tend to tell parties that all information shared during caucus will be confidential unless they instruct the mediator to share it; others tend to tell parties that they will share any information learned during caucus with the other party as they see appropriate, unless instructed not to share it.

Respondents practicing outside the United States were more likely to tell parties that all information (except that highlighted by the party) is confidential, and California mediators more likely to tell parties that they will share information they consider appropriate — unless parties instruct them otherwise. Once again, mediators practicing in other parts of the United States tended to fall somewhere in between. This is illustrated in part by Table B, which indicates the extent to which the statement “I tell parties that I will share any information I learn during caucus, as I see appropriate, unless they instruct me to not share it” is reflected in mediators’ practice. As may be seen from a comparison of the weighted averages for each group, shown on the right-hand column of Table B, California mediators tend to use such statements in their practice most frequently; mediators practicing outside the United States are the least likely to do so, and mediators practicing in US states other than California are again in the middle. The pattern might cause one to wonder if there is a relationship between the degree of emphasis on separating the parties during mediation and the propensity — or need — to have more flexibility in the sharing of information imparted in caucus.

Reader Feedback

To explore these practices further, mediators are encouraged to offer their comments (and geographic location of practice) on the following question, by emailing Karinya@karinyaverghese.com:

• With regards to the handling of information received from the parties in caucus, the article identifies that mediators may either tell parties that:
  • all information is confidential (unless parties instruct otherwise); or
  • mediators will share information they consider appropriate (unless parties instruct otherwise).

What is your preferred approach to handling information shared by the parties in caucus, and why? 

Stay tuned for our next post, which will cover the final area of regional divergence, being the mediator’s use of evaluation/opinion giving.

*Thomas J. Stipanowich is the William H. Webster Chair in Dispute Resolution, Professor of Law, Pepperdine University School of Law and Academic Director, Straus Institute for Dispute Resolution. Karinya Verghese, LL.M. in Dispute Resolution (2014), is the Straus Institute Research Fellow (2015-2016) and an Independent Commercial Mediator and Conflict Resolution Consultant in Los Angeles.

© 2016 Tom Stipanowich & Karinya Verghese