“When They Bring the Wrong People…”

Jeff Kichaven

In mediation as in everything else we do, an ounce of prevention is worth a pound of cure.

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 in these columns, the vital urgency of thorough preparation. The optimal lineup is not likely to show up all by itself. It takes work.

Here are some suggested steps you can take.

First, develop a clear concept of the mediation’s purpose.

While it’s tempting to say the purpose of the mediation is “to settle the case if possible,” it won’t help you plan and execute any particular mediation very well. It’s too general. The purpose of every mediation is “to settle the case if possible.” That’s what mediation is! By contrast, a more particular statement of purpose can help you focus your planning and pave your path to settlement.

Here are some more particular statements of the purpose of a mediation:

• 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 help clients express their expectations, 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 demonstrate your sincerity and resolve to the other side—or to your own clients.
• To create a synergistic environment for open, creative brainstorming of inventive solutions.
• To show your client how tough 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 in your particular case will instruct your decisions, including who should attend. And who should stay away.

Second, figure out who you need present to accomplish your purposes—and who you need absent.

Third, enlist the help of the mediator to assemble the dramatis personae. It should be standard practice to speak with the mediator between the time you submit written statements and the day of the mediation. In that call, make sure these issues are on your agenda. The mediator can then influence your counterparts to bring, or not bring, particular people. While the mediator may not always be successful in securing the perfect lineup, the mediator generally can let you know in advance who will and will not attend.

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 your key to success.

Rachel Ehrlich

When the other side brings the “wrong” person or people to mediation it can derail the discussion before it even gets started.

Raise it or not? If at the beginning of the mediation session you learn someone is not there who you think should be there, do not be shy about asking the mediator to work with the parties to get the “right” people to participate before substantive mediated discussions begin.

Time. In several recent mediation sessions the “right” people were not in the mediation session but discussion of the importance of having those people did result in them fully participating—an advantage of video mediation. Getting the right people into the mediation session can take 30-90 minutes, so expectations regarding the pace of the discussions need to adjust. Often in mediation when who is “right” to participate has taken 60-plus minutes, a few hours later someone will indicate they expected the negotiations to be farther along than they are and it is obvious people have forgotten the time taken on whether we had the “right” people in the discussion. It helps to keep in mind that the discussion of who is “right” can set the tone for the remainder of the mediation.

Offense. Lawyers will say they are offended on behalf of their client regarding who is or is not there for the other side. If your client representative is genuinely offended that the other side’s person “right” is not present, alert the mediator to the sensitivity. It is not helpful for lawyers to claim offense on the client’s behalf or to feign offense. Offense, real or feigned, is most often perceived as a weakness by the other side.

Made the facts. If the issue with who the other side has participating is that they participated in making the facts—the policyholder who had all communication with the carrier, the claims professional who handled the claim and there are contentions that the claim was mishandled—do not hold back what you say about the problems with what the person did. If those problems are going to change the perception of the matter, discussion of them will have impact either in the mediation session or later when the session is reflected upon or reported on to others.

Proceed or not? If the mediator tells you that the mediator has explored the issue of who the other side believes is “right” for the other side to have present, and “who they have is who you’re going to get,” then you have to decide whether to put the issue aside and proceed to negotiate. If there was breach of an advance agreement regarding who would participate, you may not be able to proceed. Parties who do decide to proceed and do so with a mindset that they will negotiate as best they can with the people on the other side seem to make good progress in mediation. Parties who keep revisiting that the “wrong” people are in the mediation session seem to make less progress.

Do mediators have ideas about who is “right” to participate in mediation? Sometimes. In the end, many mediators, like you, will work with whomever participates in whatever way those people will participate.