So the other party has finally agreed to mediate, or maybe the Court has ordered it? Now is the time to consider carefully who should attend the mediation.
I should add that the following only applies to commercial and civil mediation rather than workplace mediation, where the dynamics and attendees are different.
The decision can have an impact on the outcome of the mediation. What are the main considerations?
Who is Your Mediator?
Never forget the importance of choosing a good mediator with a good settlement rate, such as a ProMediate mediator. It is not always the case that a well known name will do a great job as mediator-they may have too much work on to be interested in your case. They may not understand the legal or factual issues in the case, so choose your mediator carefully. Sometimes well known mediators trade off their past success and don’t put as much into preparation or care so much about achieving a settlement for you. Newer mediators can be keener to impress and to get a good result than established names from expensive London based mediation providers.
Do you bring your lawyer?
We don’t mind whether you bring your lawyer or not, as we can deal with either situation, but it is important to remember that although lawyers add to the cost, they can be very helpful in advising and helping to draw up a settlement agreement. If the other party has a lawyer and you don’t, the mediator will try to redress the balance. We have had cases where QCs have attended and we have to say that it isn’t always necessary! Sometimes it is useful to take the lawyers out of the equation altogether and speak woman to woman!
i have to say that sometimes people do not really have a choice as they simply cannot afford lawyers. We have definitely seen cases where a party would have benefited from independent advice in order to help them to see the wood from the trees and to assess the risk.
Who is Coming along from the Other Side?
Consider who you would like to come along from your side and contact the other party to try find out who they will be bringing. Sometimes they are cagey about it. The key issue is to make sure that the people coming are most likely to be able to help in reaching a solution. Generally we find that the more senior the people attending are, the more likely you will get a settlement. It is never as effective to send along a junior person who needs to speak to someone more senior on the telephone and we have heard of other mediators who have seen a mediation fail because of this problem. We even heard of one where the parties spent the day mediating until 8pm and then the settlement was not signed as the senior person on the telephone overruled what was negotiated!
Of course if the mediation is taking place online or by telephone, there is no reason why the decision makers can’t easily take part. What we generally recommend is that the parties try to bring someone of equal standing and authority to the mediation as the other party.
People Attending who have a Direct Involvement in the Dispute?
This is a difficult one as sometimes it is useful and indeed essential for the party involved to attend the mediation. The prime example of this is in clinical negligence or professional negligence claims. It can be very powerful and persuasive for the person actually affected by the case to attend and present to the other party. We have witnessed the power of the wronged party in the mediation context. It allows parties to apologise to one another and an apology can be a very valuable thing.
What often needs to be considered in some family type property cases is the protection of vulnerable parties. We have seen parties try to use mediation as an extension of their coercive and controlling behaviour. If parties behave in this way we consider whether the parties should meet each other and sometimes an opening session is not possible. Moreover, if one party is threatened by the other it may be necessary to terminate the mediation.
It can though be quite difficult to evaluate the strengths and weaknesses of a dispute in which you are directly involved and invested. Principles take over from interests. Emotions can be a blockage to settlement. There can be a tendency towards confirmation bias.
I have to say that sometimes people do not really have a choice as they simply cannot afford lawyers.
Do you Bring your Witnesses or an expert?
Parties are sometimes reluctant to bring a witness with them to a mediation, fearing that they may not come across well and so weaken the case. Whilst this is an important consideration it may be that bringing a witness along will help your own side to take stock and consider the merits of your own case, leading to settlement. There is no right or wrong answer, but remember a mediation is not a mini trial.
You can minimise the risk by briefing the witness in advance and working out what role they will play. With regards to experts, obviously they can be very expensive and charge more than the lawyers! In a clinical negligence claim experts do not normally attend as they will have submitted expert reports. In a very high value claim, the parties might want to bring their expert to explain their case. I would caution against it unless in the most high value cases. We have had surveyors attend mediations in property cases and it can be helpful with a boundary dispute to measure up boundaries afterwards.
Should the decision maker always be in attendance?
The mediator’s heart will sink if the parties do not bring with them someone with authority to make offers and ultimately settle the case. Sometimes it is not clear until late in the day that the person attending needs to speak to someone else such as a director of the business, family member or an insurer to agree a certain settlement or to sign the agreement. This can raise confidentiality issues. The reality is that it may not be economic for the decision maker to attend and with insurers it can work for the decision maker to be on the end of the telephone.
Obviously it is better to find out before the mediation or as early as possible during the process itself to establish what limits of authority the person has to resolve the matter.
It can be a battle to get the parties to agree to mediate so always think carefully about the troops you are sending to the battle as otherwise the opportunity to resolve matters may be wasted. By all means speak to the mediator in advance if you have any concerns about who will be attending. At ProMediate we can help.