During most business mediations, the mediator will at some point break the parties into separate rooms and hold private caucuses with each side. Parties often wonder what the mediator tells each side about what the other says in these private caucuses.
Mediations are confidential proceedings. Except in rare circumstances (such as a party disclosing that he or she intends to commit a crime), the mediator cannot be compelled to disclose what happens during the mediation. So the mediator will not tell anyone outside the mediation about what either party says.
But what about what one party says privately to the mediator? Will that be disclosed to the other side in the dispute?
The answer to this question depends on the ground rules that the parties and the mediator set.
The first place to look is in the mediation agreement that the mediator and the parties typically sign either in advance of the mediation or when the mediation begins. Most mediators will also raise the issue in the opening session, before they start any private caucuses.
But keep in mind that mediators often find that selective disclosure of information from one party to the other will increase the likelihood of settlement. Most mediators have a bias toward wanting to be free to communicate what they think will help resolve the dispute.
There are two general practices:
1. First Approach: The mediator can disclose anything said by one party during a caucus to the other party, unless the disclosing party tells the mediator not to reveal it.
Most mediators tell the parties up front that they will feel free to tell the other side anything that is said in caucus, UNLESS the party tells them not to. If instructed to keep the information confidential, they will do so, until the revealing party says it is all right to reveal the information. That is the easiest practice for the mediator, because they can communicate more freely during private caucuses.
This is the practice that I use, because I believe that full disclosure during a mediation is typically better.
However, it is important to respect the instructions from the revealing party. I mediated one employment case in which the employer had evidence that the employee had breached a company policy (though that wasn’t the reason the employee was fired), but the employer representative wouldn’t let me tell the employee and his attorney about that evidence. I thought this was wrong, because revealing the employer’s knowledge of the employee’s wrongdoing could well have motivated the employee to settle for less. But I followed the employer’s instruction and did not reveal what the employer told me.
I did push back in later caucuses with the employer, but the employer stood firm, so the information was not revealed to the employee during the mediation (which was successful anyway).
2. Second Approach: The mediator will not reveal anything said in caucus to the opposing party unless expressly authorized by the disclosing party to reveal it.
Sometimes mediators tell the parties they will not reveal anything said in caucus without having the express permission of the party revealing the information to disclose it. Some mediators adopt this practice because it is hard to remember what they’ve been instructed not to reveal, so they decide not to reveal anything unless disclosure has been expressly authorized.
Even if the mediator’s practice is not to reveal what the other party said, the mediator remains free to give his or her own interpretation of how the opposing caucus went. So, for example, if the mediator has not been authorized to tell the plaintif that the defendant said this was a final offer, the mediator might still say to the plaintiff that the mediator doesn’t think the defendant has much room to maneuver in reaching a settlement.
Parties should be prepared to explain to the mediator why they don’t want the information revealed. There doesn’t have to be a reason, but a good rationale (e.g., the information is a trade secret, harm to the company if it is revealed would be irreparable, and the opposing party has blabbed inappropriately in the past) might keep the mediator from pushing back in later caucuses with the revealing party, as I did in the employment case described above.
3. The practical result of these two approaches is not that different.
Whichever practice the mediator adopts, the practical result is often the same. Because one issue during the caucus is often deciding how the mediator should approach the next session with the other side—not only the amount of the next settlement proposal, but also the issues that the mediator should stress in making the case to support that offer. This requires a discussion about what should be revealed to the other side. Some mediators will role play how the information might be disclosed to the other side, and the disclosing party agrees with the mediator’s approach.
4. Attorneys and parties should be clear with the mediator about what they do not want communicated.
Parties and attorneys who participate in mediations should always feel free to ask the mediator how he or she approaches disclosure of information to the other side.
When they reveal information to the mediator in caucus, if there is any question in a party’s or their attorney’s mind, these participants should raise the issue with the mediator. Ask the mediator what he or she intends to share with the other party. If the party/attorney doesn’t like the mediator’s approach, discuss it. Regardless what the mediator has said up front, the mediator and the disclosing party can and should agree on what will be revealed before each caucus ends.
Mediators are neutrals, which means at the least respecting each party’s desire for circumspection in revealing information to the other side. By discussing the issue openly during a caucus, parties should not later be surprised or upset by what the mediator tells the other side.
What experience do you have with mediators’ use of caucus information in a mediation?