Mediator Practices and Perceptions (Part 1):
By: Tom Stipanowich, IAM Honorary Fellow & Karinya Verghese*
Posted: April 29, 2016
How do mediators actually work? 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.
This post focuses on the use of joint session and caucus, and it is our hope that you will read the relevant extract from the article below and respond to the questions raised at the end:
The survey showed significant divergence in mediator practice on one aspect of the process that has stimulated a good deal of discussion in recent years: the use of caucuses (private meetings between the mediator and individual parties with or without counsel present) versus joint sessions (meetings in which the mediator talks with all parties and counsel in the same room at the same time).… [S]ome respondents (39.7%) always or usually begin the mediation in caucus. Of course, this means that most responding mediators tend to begin mediation with a joint session.
Even more interesting, however, are the group results when sorted by regions of practice… Although our initial report of survey responses did not include a breakdown by geographical region, a vociferous debate over the relative usage of caucus and joint session between California mediators (who represented nearly a third of the IAM respondent group) and mediators from other parts of the United States during an early presentation of the data on the use of caucus prompted me to go back and examine and compare the results for those practicing in California with those who practice in other parts of the United States. Mediators practicing outside the United States were treated as a separate category for this analysis. The resulting data suggests that while mediators practicing within each region show great diversity in their approaches to the use of caucus, there are also noticeable differences in the overall response from region to region — as can be seen by comparing the weighted average response for each group.
Survey data suggest, for example, that mediators practicing in California tend to be more likely to begin mediation with the parties in caucus, while mediators practicing outside the United States collectively tend to be much less likely to do so. Mediators practicing in the United States but not in California tend to fall somewhere in the middle, between the other groups. This data should be read with the firm caveat that the groupings of “mediators practicing in states outside California” and “mediators practicing outside the US” were made largely for the sake of convenience, and it is likely that, given a larger global pool of respondents, a further breakdown by state or region would highlight other differences not apparent from the data as currently configured. As already noted, moreover, there also appears to be wide diversity of practice within any group.
Nevertheless, the regional divergence indicated … merits consideration, particularly because similar patterns are reflected in a number of other group responses to survey queries. For example, other data from the survey indicated that about one-quarter (24.6%) of all mediators responding to the survey always or usually keep parties in caucus during the entire mediation; a slightly greater number (29.4%) never do so. Paralleling the patterns revealed…, mediators practicing in California are more likely to keep parties in caucus throughout mediation, mediators practicing outside the United States are much less likely to do so, and mediators practicing in the United States (but outside California) once again tend to fall somewhere in between the other two groups.
While the survey showed a variety of reasons why mediators employ caucuses, comments by California mediators suggested that their use of caucus was often heavily influenced by the preferences of legal advocates:
“In California, counsel seem to have taken over the mediation process, and it is just not possible to have a pure mediation where the parties engage directly. On occasion, I have been specifically instructed that counsel and the parties do not even need to see each other.”
“In Los Angeles the lawyers control the process and the legal personalities can be difficult. These same lawyers, and others, refuse joint sessions.”
“At least 90% of the lawyers involved in the mediations I handle do not want to start with a joint session….”
To delve deeper into these issues, mediators are encouraged to offer their comments (and geographic location of practice) on the following questions, by emailing Karinya@karinyaverghese.com:
- What influences your decision to start mediation in caucus or joint session?
- Is this decision conveyed to parties pre-mediation?
- Do parties, or their lawyers, express a preference either way?
Stay tuned for our next two posts, which will cover the other two identified areas of regional divergence, namely, the handling of information obtained during caucus and 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