What happens in a mediation caucus? Answers from one mediator's caucuses in a study by Daniel Klerman and Lisa Klerman.
One paragraph from Inside the Caucus: An Empirical Analysis of Mediation from Within:
Parties in Lisa Klerman's mediations were always represented by lawyers.
At least a day before the mediation, the lawyers ordinarily gave Ms
Klerman “mediation briefs” summarizing the facts and legal issues. Lisa
Klerman would typically begin the mediation by discussing the facts and
underlying legal issues of the asserted claims in separate private
caucuses (meetings) with each side. These communications were
confidential in order to encourage the parties to be candid with the
mediator. Ms Klerman would explore the strengths and weaknesses of the
case with each side in order to set the stage for the parties to adjust
their settlement expectations. In some cases, Ms Klerman would recommend
an attorney caucus (a meeting between the mediator and the attorneys
representing both sides, without their clients) to discuss disputed
facts or novel legal arguments. It might be several hours before
settlement numbers were discussed. Toward the end of the day, the
parties may have stalled in their negotiations. If so, Ms Klerman would
frequently make a “mediator's proposal” to settle the case. A mediator's
proposal is a settlement proposal that comes from the mediator—not from
either side—and is the number that the mediator believes both sides are
most likely to accept. Although mediations are sometimes classified as
facilitative or evaluative, Ms Klerman uses both approaches, as she
thinks is most appropriate for each dispute.
Because of her experience as an employment litigator, her evaluation of
a case had substantial credibility with lawyers and their clients.