Participation Matters

This week I had a mediation take place by an agreement of the parties in which one of the clients expressed his displeasure that the other side was represented at the mediation by someone with less than “full authority” to settle the case. The client was grumpy, his lawyer explained to me in my office. I thought the client’s sentiment was appropriate. He had committed a lot of time and money to the process. He had traveled from the West Coast to participate. Who should the client be disappointed with?
I asked the lawyer in my office if, when the parties agreed to mediate, it occurred to him to make attendance by a key player in the dispute, the person with full authority, a condition of agreeing to mediate. “No”, was his response. “Maybe next time”, I responded.
Participation Matters
We have all learned the hard way that participation matters in mediation. Whenever someone is participating “by phone” the likelihood of success of the process plummets, regardless of their good intentions. All too frequently the process gets off to a bad start when one side learns first thing in the morning that the other side has brought the “wrong” person, or the process bogs down in the afternoon because a key player has boarded a flight. Why do we let this happen?
If a mediation is court-ordered, did you know that the rules for mediation say you are entitled to know who the other side is planning on bringing to the mediation in advance? If you or your client have any concern at all about the other side’s participation, just let your mediator know and give them an opportunity to intervene. If a mediation is occurring by agreement, can you think of a reason why you should not make an assurance about full participation on the other side a condition of your agreement? Neither can I.