can you caucus in med-arb?

yes. but it is not that simple. there are occasions where you should not.

in the arbitration component of med-arb, private communications between one party + the arbitrator are inappropriate. they should not take place. this consideration pertains only to the mediation phase of med-arb.

the concerns that arise with private communications in the mediation phase of med-arb surround what the mediator who may turn into the decision maker might find out that the other party does not know about. they may wonder if something goes into the decision that they are unaware of.

while some believe that caucus in the mediation phase of med-arb should not take place due to this concern, i prefer to let my clients decide. i have conducted med-arb where caucus has been part of the mediation phase without issue. i have also encountered situations where it would not have worked. this is definitely something that warrants advance consideration + application to the case at hand.

 

 

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