Tag: Shaffer Mediation

Caucus Part 2

{4:06 minutes to read} My last blog addressed caucusing basics. I thought it might be interesting to expand the topic a bit to include some variations. As I previously wrote, non-divorce mediations are largely conducted through caucusing, with the mediator speaking to each side separately for much of the mediation. Divorce mediations typically are not conducted in this manner. But these are generalities; there is no one-size-fits-all.

Counsel-to-Counsel Caucus (aka Get Those Clients Outta Here!)

Sometimes it can be useful to send the attorneys on a walk without the intrusion of the mediator or the parties. Counsel may have a prior relationship that enables them to talk outside the hearing of their clients, in a way that permits cutting through some of the formalities or concerns they would have if clients were present. I have successfully used this approach even when the lawyers did not previously know each other but developed a rapport during the course of the mediation.

Caucusing Part 1

{3:36 minutes to read} Caucusing – speaking to parties separately outside the presence of each other – is a standard part of most mediations. It is essential in just about every commercial, employment, or personal injury matter. Parties often feel free to say things to the mediator that they do not want to say to the other side. And the mediator can say things to parties and their attorneys that could not be said in a joint session. It also allows the mediator to develop a strategy to help bring the parties positions closer together.

Whatever a party says in the caucus is confidential, unless they agree it can be disclosed. In multi-party matters, this can become a bit complicated but the basic rule is the same.

Mediation Timing Part 2 – Commercial, Corporate, Employment

{4:00 minutes to read} In my last blog about timing and mediation, I suggested that in divorce matters, there is a sweet spot of around 90-100 minutes for any single session. You can read that blog here: Part 1. This framework is largely irrelevant to other types of cases, such as:

Commercial;
Corporate;
Employment;
Personal injury.

In non-divorce matters, the parties and especially the attorneys expect to spend a significant amount of time during any one mediation session. There is more shuttle diplomacy, especially early on.

Mediation Timing Part 1 – Divorce Mediation

{3:30 minutes to read} What’s the right amount of time for a mediation? As Goldilocks might put it:

What’s too much
What’s too little
What’s just right?

As in many such matters, it depends. Some parties fade quickly, others are happy to go on for hours and hours, days and days. What works differs from case to case.

Overcoming Resistance Part 2

{Time to read: 3 1/2 minutes} During every mediation I try to establish a personal relationship with the parties and the attorneys. No, we don’t go out for drinks together. But I want to know more about the people other than the dispute that brought them before me. Often I ask simple questions. These may differ depending on the nature of the case. All mediations – employment, divorce, commercial, personal injury – provide opportunities for talking about more than just what’s in a complaint:

Should Mediation Be Mandatory? – Part 2

In my last blog I asked the question, “Is Mandatory Mediation an Oxymoron?” From the responses I received, it seems clear it is not.

There are all sorts of reasons to require mediation, the most important being that experience shows it works. Once parties are in the room they typically participate in good faith, whether they showed up through mutual agreement or external requirement. And the statistics show little difference in success rates between compulsory and voluntary programs.

Mediators are usually paid by the parties in mandatory programs. While that might seem to present problems, once again, experience shows it does not. Parties share the cost and that cost is typically far, far less than the cost of litigation. Often pro bono or reduced fee counsel can be found for cases where a party has limited resources.

Is Mediation Always Successful?

Well, pretty much. But first, let me backtrack.

What is meant by success?

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