This is the ninth article in this series on mediation advocacy. The eighth article, published August 31, discussed the advocacy strategy for the opening joint session. The article continued a scenario in which the parties, Widgetronics and DesignMetrics, entered into a contract containing a dispute resolution clause and became embroiled in a dispute over Widgetronics’ alleged wrongful termination of the contract. During the preliminary conference call with the mediator, the mediator reviewed the process she would be utilizing at the mediation, starting with a joint session and then moving to private caucuses with each party. This article provides tips on effective advocacy for those caucuses.
While the purposes of a caucus can vary, they often include: protecting proprietary or personal information, brainstorming ideas for presenting a proposal, reality testing, discussing confidential business interests, exploring options and venting. Although caucuses are not part of every mediation (for example, mediators use caucuses less frequently in family and community mediations), many mediators do use caucuses extensively, particularly in commercial mediations. When the mediator and the parties plan to rely more heavily on caucuses, counsel should understand what to expect and how best to use that time to make progress in settling their dispute.
