Chapter 6 Setting the Stage

• Jurisdiction: United States

Chapter 6 Setting the Stage

Now that you have concluded the opening joint session, you and your client have been directed to your caucus room—your private haven for the day. Recall Professor Fortgang's next message: "pay attention." Your role in applying this dictum is manyfold, but includes:

1. listening carefully to the mediator,
2. digesting the information received,
3. communicating clearly,
4. protecting your client,
5. advising your client, and
6. remaining confident and calm, in command of the situation.

These tasks are often much more difficult than they might seem. A good mediator can be dramatically helpful in these tasks. A bad mediator can undermine them catastrophically.

A good starting point to your mission during the caucus process is best described in the writings of the late noted psychotherapist Carl Rogers, who emphasized the importance of "active listening." This involves living only in the present. Forget about the past and set aside any artificial goals or personal feelings that have no present basis and will only serve to undermine your progress on this day.

In early caucuses, much time is devoted to venting privately by you or your client to the mediator. This is an exceedingly healthy and almost necessary antecedent to rational decision making. There will also be a lot of presenting of facts and data to the mediator. Many of these minutiae of your case will ultimately be subordinated (or "funneled") as the matter progresses into middle and late caucuses.

For the time being, be aware that the mediator is assessing the emotions in each caucus room and getting a feel for the respective negotiating styles of each party that day. The initial caucuses necessarily involve some degree of "sparring," much as a prize fighter in early rounds gauges his opponent's reflexes and tendencies. In these early stages, it is crucial not to send...