Who Belongs at a Mediation?

Whether you are a mediator or an advocate, you understand the necessity for all relevant people to be at a mediation.  Of course the parties to the litigation need to attend – but in many cases, there are other people who should be there.  Maybe it is the person who has the ultimate authority to settle the case – often the insurer or a corporate representative or a family member.  Sometimes it may be a person with relevant factual information or a person with a relationship that is key to a matter resolving.  Is the missing person someone who has information that would be beneficial to conduct the mediation or someone who has an influential relationship with one of the parties?  Perhaps it would be necessary for an interpreter to attend if one or more parties do not speak English.

What should you do if you believe that one of the other parties has not brought someone you believe is necessary to the mediation?  Options can include postponing the mediation until all the necessary people are present.  There could be a problem if an agreement is reached and the missing person was key to having the agreement really work out factually and perhaps legally.  The parties can enter into a temporary agreement that is subject to acceptance by the missing party – less than ideal, but the parties are hopefully invested enough by that point to convince the missing party to make it work.

When considering whether it is worth proceeding with a mediation, despite an absent key party, the pros and cons of having/not having the missing person at the mediation should first be considered.  How essential are they?  If the mediation is in person, should that person be joined remotely?  Would it work to have the person just be available by phone, if necessary?  That is often what is proposed, particularly if that person is in another time zone or lives/works far away from where the mediation is occurring.

Then there is the opposite situation – what do you do if someone shows up to a mediation that was not expected?  What should you do if a party shows up with one or more of its experts?  Or perhaps an attorney who is not counsel of record?Again, the parties must first consider how vital that person is to the mediation.  If that person is not a party, will they perhaps be a disruptive force?  If everyone agrees that person should stay, they would definitely need to sign a confidentiality agreement or sign the mediation agreement that has a confidentiality clause in it.  Perhaps – especially if there is an objection to the person attending – the best you can do is have that person sit in a separate room until later in the mediation and see if the objection still remains. 

Timing will affect how to handle these types of situations.  Preparation by the parties and the mediator will reduce the chances of such a situation happening.  Ask the parties ahead of time for a list of people who should attend the mediation and why they need to be there.  Consider sharing this with all the parties and counsel.  This will help shape a successful mediation.