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Mediation and the Art of Shuttle Diplomacy

2011; Wiley; Volume: 27; Issue: 3 Linguagem: Inglês

10.1111/j.1571-9979.2011.00309.x

1571-9979

David A. Hoffman,

Conflict Management and Negotiation

Negotiation JournalVolume 27, Issue 3 p. 263-309 Mediation and the Art of Shuttle Diplomacy David A. Hoffman, Corresponding Author David A. HoffmanDavid A. Hoffman is a mediator, arbitrator, and attorney and founding member of Boston Law Collaborative LLC. He teaches the mediation course at Harvard Law School, where he is the John H. Watson, Jr. Lecturer on Law. His e-mail address is [email protected].Search for more papers by this author David A. Hoffman, Corresponding Author David A. HoffmanDavid A. Hoffman is a mediator, arbitrator, and attorney and founding member of Boston Law Collaborative LLC. He teaches the mediation course at Harvard Law School, where he is the John H. Watson, Jr. Lecturer on Law. His e-mail address is [email protected].Search for more papers by this author First published: 18 July 2011 https://doi.org/10.1111/j.1571-9979.2011.00309.xCitations: 16Read the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onEmailFacebookTwitterLinkedInRedditWechat Abstract Mediation caucusing — that is, separate meetings conducted by the mediator with some, but not all, of the parties — is widely used, but it has become increasingly controversial, as some mediators advocate for a no-caucus form of mediation using only joint sessions with all parties present. The rationale for the no-caucus model is that caucuses give the mediator too much power at the expense of the parties, and joint sessions improve the parties' understanding of each other's views. But caucusing adds value to mediation in several ways. First, from the standpoint of economic theory, caucusing provides mediators with an important tool for overcoming two impediments to settlement — the "prisoner's dilemma" (caused by the parties' fear of mutual exploitation) and "adverse selection" (caused by the failure to disclose information). Second, caucusing can help the mediator overcome a variety of negotiation problems, such as communication barriers, unrealistic expectations, emotional barriers, intraparty conflict, and fear of losing face. Third, caucusing provides a more private setting in which the mediator can develop a deeper and more personal understanding of the parties' needs and interests. Although the no-caucus model may be appropriate for certain types of mediation (particularly those cases in which the parties will have an ongoing relationship), some parties may prefer the efficiency that can be achieved with caucusing, even if that means sacrificing certain other values — such as greater understanding — or giving the mediator more information 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 useful, such as sessions in which the mediator meets with only the parties' lawyers or with only the parties. Choosing the best format for a mediation is more of an art than a science, and mediators should consider, with the parties, whether the parties' objectives would be best served using only joint sessions, extensive caucusing, or a combination of these approaches. REFERENCES American Bar Association Section of Family Law. 2001. Model standards of practice for family and divorce mediation, Standard X. Washington, DC: American Bar Association. K. Arrow, R. Mnookin, A. Tversky, and R. Wilson (eds). 1995. Barriers to conflict resolution. New York: Norton. Barkai, J. 1992. Applying the Hawaiian mediation model to disputes and conflicts. Interperspectives 11(40): 1–5. Beer, J. and E. Stief. 1997. The mediator's handbook. Stony Creek, CT: New Society Publishers. Belman, H. 2006. 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