Parties to mediations frequently become frustrated at the number and length of mediator-party caucuses. Some resign to them and make themselves busy (one former colleague was fond of watching “The Godfather” while the mediator was elsewhere). Others take solace by imagining that the mediator is “working over” the other side and, to be fair, that is often the case with some mediators. But the more senior the participant, the more likely he or she is to be irritated at what is perceived to be a waste of time without tangible action or movement.
In this author’s experience, the time spent caucusing individually with parties on a confidential basis is vastly underrated and, if anything, needs to happen more. A joint session is no place, for example, to explore tax clienteles and, thus, the possibility and magnitude of tax arbitrage. Such sessions are likewise incompatible with candid discussions about the tensions between underlying dynamics and insurance-coverage issues (e.g., the interplay between privilege in a mass tort and a related coverage dispute). The parties’ needs and wants must be coaxed out gently in a safe place, or they will remain hidden and, frankly, useless in bridging gaps. If that happens, opportunities are lost for everyone involved.
Exploration is the only way that a mediator can understand where the parties actually are and, far more importantly, where they truly want to be. Obviously this needs to be confidential, and this promise of confidence needs to be sacred to both the mediator and the parties. Once all involved have agreed to those terms, real movement toward a solution that is the least unpalatable to everyone is most likely to appear. No settlement makes everyone happy. They involve compromises from the parties’ considered and principled positions. The key is to minimize those compromises on all sides, and for that the participants may need to be patient for the kibitzing (i.e., confidential chatting) necessary to obtain the optimal outcome.
John C. Lenzen, FCIArb