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Who Should Participate in Mediation - Organizational Parties (Signaling)
Categories: Practice Tips
Deciding on the right persons to attend mediation on behalf of an organizational party is a nuanced and strategic consideration. Should the organizational representative be someone with complete authority to make decisions at the table; or someone with little or no discretion who simply carries out directions from a decision-maker or committee back at the office? Is there a middle ground? Should the representative be someone familiar with the facts of the dispute first hand; someone from the general counsel or human resource office who simply reviewed the matter or participated in the decision-making process leading up to the dispute; or someone entirely independent? In an employment discrimination case, should the organizational representative be the accused supervisor? If there’s insurance coverage, should the adjustor or claims supervisor be present in person? Should a key manager attend, as well?
Because every case is different, the decision will differ from one dispute to another.
One important consideration in deciding who should attend – one often overlooked – is the signal it sends.
The identity of the person selected almost always sends a message, sometimes a significant one that may be unintended or erroneous. Attendance by a low level representative with limited discretion will likely be read as a sign mediation isn’t being taken seriously. Participation by the CEO, on the other hand, will no doubt be taken as a sign of respect.
I recently mediated a contentious commercial dispute where these signals were initially missed. Each side brought multiple representatives to the table including key decision-makers, a business owner and all the top executives. Everyone flew in from out of state the night before to meet with counsel. When the inevitable accusations surfaced during the mediation process that the other side wasn’t participating in good faith, reviewing who was at the table had a positive and productive impact. “Who do you think is running the store with so many executives attending mediation? How much do you think they spent on airfare, meals and hotels to bring the management team here? How much are they being paid in salary for work yesterday and today that isn’t contributing to the bottom line? If this were a farce, wouldn’t they have shown up with only one, low level representative?” Message received – and appreciated.
Next time you’re deciding on the proper organizational representatives to attend mediation, consider the signal you’re sending and select accordingly.