Mediation and the Art of Shuttle Diplomacy

Abstract

Mediation caucusing ‐ i.e., separate meetings of th e mediator with each of the parties ‐ is commonly used in commercial disput es, international diplomacy, and even the resolution of inner-city gang conflicts. However caucusing has become increasingly controversial, as some mediators advoc ate for a no-caucus form of mediation using only joint sessions with all partie s present. The rationale for such an approach is that caucuses give the mediator too muc h power at the expense of the parties, and joint sessions improve the parties’ un derstanding of each other’s views. Yet caucusing adds value to mediation in several wa ys. First, from the standpoint of economic theory, caucusing provides m ediators with an important tool for overcoming two impediments to settlement ‐ the “prisoner’s dilemma” (caused by the parties’ fear of mutual exploitation) and “adve rse selection” (caused by undisclosed information). Second, caucusing helps the mediator overcome a variety of negotiation problems, such as communication barrier s, unrealistic expectations, emotional barriers, intraparty conflict, and fear o f losing face. Third, caucusing provides a more private setting in which the mediat or can develop a deeper and more personal understanding of the parties’ needs and in terests. Although the no-caucus model may be appropriate for certain types of mediation (particularly those cases in which the pa rties will have an ongoing relationship), some parties may prefer the efficien cy that can be achieved with caucusing, even if that means sacrificing certain o ther values ‐ such as greater understanding ‐ or giving the mediator more informa tion than the parties have, thus creating the risk of manipulation by the mediator. Moreover, the choice is not binary ‐ numerous variations and hybrid formats can be usefu l, such as sessions in which the mediator meets with only the parties’ lawyers, or o nly the parties. There is more art than science to choosing the best format for a mediation, and mediators should consider, with the parties, wh ether the parties’ objectives would be best served by using only joint sessions, extens ive caucusing, or a combination of these approaches.