Who Should Participate in Mediation - Individual Parties
Mediation succeeds when the right parties – almost always the decision makers - are at the table. This is true of plaintiffs and defendants alike. Deciding who should participate is easy for individual parties. For organizational parties the decision is more complicated and will be taken up in the next blog post. Decision-making by individual parties is called “self-determination”, a key value reinforced in Michigan’s Mediator Standards of Conduct. http://courts.mi.gov/Administration/SCAO/Resources/Documents/standards/odr/Mediator%20Standards%20of%20Conduct%202.1.13.pdf
Self-determination is lost when a party is absent from the table. I’ve had cases where an attorney did not bring his client to mediation, but such cases are rare, because the strategic “advantage” sought is illusory.
Deciding to include the parties, however, does not end the discussion. Does the party rely on a trusted partner or advisor to make important decisions? Is the party married or in a long-term relationship, for example? If so, there could be resistance to settlement without spousal approval. Worse, a decision to settle without spousal input could result in buyer/seller remorse or costly and frustrating efforts to set aside the agreement. Recognizing the importance of input from such individuals, there are rarely objections to the participation of non-parties in the process such as a spouse, financial advisor, estate planner, tax counsel, etc.
Participation by telephone is a poor substitute for presence in the flesh where the mediator builds a relationship and gains trust and confidence. Serious movement rarely occurs without new information surfacing, known information perceived in a new light or development of a deeper, richer appreciation for risks. These unfold over time and result from mediator efforts to facilitate communication and address resistance. “Why do you need this?” “What’s driving that?” “How do you explain…?” The person on the phone did not participate in that process; and did not experience the “break through.” Accordingly, it may be difficult to explain why the evaluation reached in advance needs to be modified.
If a party wants to bring a key advisor to mediation, I encourage the other side to agree absent cause to believe the advisor will play a destructive role. If there is a problem with inclusion in a joint session, consider participation in caucus or the waiting room, readily available for consultation and input whenever necessary. Direct participation by spouses and key advisors increases the likelihood of finding common ground and achieving a durable and lasting agreement.