When They Bring the Wrong People

If you don’t realize until you arrive at a mediation that the wrong people are there, it’s too late to do much about it. It’s tough to wrangle those absent (though it’s a tad easier when you’re online and nobody has to travel), and it’s almost impossible to boot any of those present.

So, we return to a frequent theme: the importance of thorough preparation. The optimal lineup is not likely to show up all by itself; it may take some work on your part. Here are some suggestions. 

First, develop a clear concept of the mediation’s purpose for you and your client.

Although it is tempting to say that the purpose of the mediation is “to settle the case, if possible,” that statement is too general, and it will not help you plan and execute any particular mediation very well. Settling the case is the purpose of every mediation! A more particular statement of purpose can help you focus your planning and improve your chances of getting a benefit and maybe a settlement from the mediation process.

Attending a mediation can have several different purposes, such as:

• To test the strength of your case—or theirs.
• To assess the impact of coverage issues on settlement ranges.
• To let a new set of decision-makers evaluate the case for themselves.
• To educate other lawyers (and their clients)—or for them to educate you.
• To help lawyers manage client expectations—on your side, theirs, or both.
• To allow clients to vent their anger or frustrations and tell their story
• To help clients express their interests, needs, and values—on their side, yours, or both.
• To improve communications between lawyers and their clients—on your side, theirs, or both.
• To create a synergistic environment for open, creative brainstorming of inventive solutions.
• To show your client how tough or how good you are.

There could be other purposes, many could be at work simultaneously, and in any given case, some are better than others. Knowing your particular purpose will influence your approach to the mediation and the decisions you make. Those decisions include who should attend the mediation, and who should stay away.

Second, figure out who you need present to accomplish your purposes—and whom you might prefer to be absent. Of course, you need someone with authority to settle the case, and someone who knows the facts and applicable law well enough to make intelligent decisions. But maybe there is also someone who is too personally invested in the case to be helpful or too obstinate to appreciate the risks of litigation. You may not succeed in excluding such people, but maybe you can insist that others be present who can provide a more objective evaluation of the situation.

Third, enlist the help of the mediator to assemble the dramatis personae. It should be standard practice to meet with or call with the mediator at least a few days before the mediation starts. Don’t waste that opportunity. Make sure these issues are on your agenda. The mediator may be able to influence your counterparts to bring, or not bring, certain people. Although the mediator may not always be successful in securing the perfect lineup, the mediator at least should be able to let you know in advance who will and will not attend. That should help you structure your opening statement (if there is one) or your general approach.

If you learn the lineup is sub-optimal, you have choices. You might adjust your purposes. You might change the lineup on your side. You might decide to cancel the mediation.

In any case, you can minimize surprises and plan appropriately. That’s a key to success.