Your mediator enters your room, communicates the offer from the other room and asks for your response. Do you have the mediator stay while you chat with your client or ask him/her to leave the room?
For many lawyers, the knee jerk reaction is to speak privately to your client and ask the mediator to leave. There are several reasons for this. The most common is that, as lawyers, we are taught from our first day of law school that all communication with our client should be confidential and not shared with third parties. In this instance, you ask the mediator to leave, not for a strategic reason, but instead out of habit.
If this is the reason for excusing the mediator, I would suggest you reconsider your policy. Rule 1.720 (i) FRCP provides a mediator may meet privately with any party or their counsel. By excluding the mediator, you are preventing the private communication contemplated by the Rule. Supreme Court Certified Mediators are bound by standards of professional conduct. Rule 10.360 of these rules provides that, during a caucus, a mediator may not reveal information to any other mediation participant without the consent of the disclosing party.
With this rule of professional conduct in mind, you should trust that the mediator will not share anything he learns during a private caucus without your consent. If you cannot trust your mediator to maintain these confidences, you should use a mediator who you do trust. Only use a certified mediator. If the mediator is not certified, they will NOT be bound by standards of professional conduct relating to mediators.
What are the benefits of allowing the mediator to stay in your caucus?
By allowing the mediator to hear your client’s response to the other party’s offer or demand, the mediator will learn about your client’s thinking related to the negotiation. Perhaps they do not believe an offer is really “firm” and the mediator can respond to that belief. Sometimes a client’s rationale behind refusing the consider an offer or demand is due to a factor not related to money. Perhaps they just want their day in court. If that is the case, the mediator might want to ask the party to vent a bit more. Then the mediator can explore whether a trial will really give your client the emotional relief they are seeking. But, unless the mediator is present to understand your client’s position, he/ she will be unable to use these tools.
Sometimes a client is not accepting his attorney’s evaluation of the case. If the mediator is present during this discussion between the attorney and his client, the mediator can weigh in as a neutral party and encourage the client to listen to his attorney.
Other times clients believe they are the best negotiators and will not listen to advice from their attorney or the mediator. If the mediator can stay in the caucus and learn this, the mediator can explain that since your client is not in the other room to pick up on their adversary’s cues and responses to the negotiation, they are missing details that would be helpful. Therefore, they would be best served to take advantage of the mediator’s insight and opinions.
Charles Castagna, who has been a full-time mediator since 1990, trains mediators for certification and conducts continuing mediation education courses, observes that many attorneys will exclude mediators from the caucus for other reasons. Castagna says that, “Sometime attorneys will excuse the mediator because they have some other agenda they do not wish to share.”
He agrees that it is highly beneficial to allow the mediator to remain during caucus. But, Castagna cautions against mediators being too aggressive about remaining. He suggests that a mediator should gently encourage counsel to allow him/her to stay. But, if they are not inclined to do so, it would be improper to be too forceful about it. “Ultimately the decision to allow the mediator to stay or ask them to leave is up the attorney and the mediator must respect that decision,” says Castagna.
If you truly want your case to settle, take advantage of all the tools that your mediator has in his/her tool chest. Do this by allowing the mediator to collect as much information about the case and your client’s position as possible. Allow the mediator to communicate with your client directly and be present especially during the most sensitive conversations occurring during private caucus. If there is a good reason not to do this, explain the rationale to the mediator since that information may be useful. But, do not exclude the mediator from the caucus out of habit, without a strategic reason.
Eric E. Ludin, Esq. is a founding partner of Tucker & Ludin, P.A. law firm with offices in St. Petersburg. He is a Florida Supreme Court Certified Circuit Civil Mediator and is also a Certified Mediator with the Federal District Court in the Middle District of Florida. He is a PastPresident of both the St. Petersburg Bar Association and St. Petersburg Bar Foundation.