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Mediation Tip: Successful mediation requires ALL participants attend.

March 21, 2011

Isn’t it always a chore to find a single available and acceptable mediation date for all of the participants whose physical attendance is mandatory to a successful mediation?

All lawyers, and their staff,  recognize that it is.  But it is imperative that full attendance be accomplished.

The law (and practicalities) requires the physical attendance of all parties to litigation, their counsel, any other interested-party, such as insurers, a mediator acceptable to all and the myriad of collateral persons, such as spouses or parents or others necessary to be at least available to approve any resolution reached at meditation.

And, as the number of parties increase in multi-party litigation, along with the foreseeable inter-party issues, your scheduling headache grows.  And, then, if your need for this mediation is on short notice, it becomes an even greater task.  It sometimes seems impossible.  In fact, it is one of your staff’s greatest scheduling challenges.

An  all-too-common practice that arises during the process?  Rationalization.  Gradually thinking that some of the required participants (particularly those who present your greatest scheduling difficulties)  “are not really necessary”.

In the administrative nightmare of attempting to accomplish this formidable scheduling, it often becomes very tempting to simply agree to permit other than full participation, i.e., physical attendance, at your mediation.

As scheduling issues mount, you let one party or the other not attend (“because they are not writing a check”) or you let one insurance representative attend by phone (“because their schedule is blocking a more timely setting”) or you allow one of the Plaintiffs off because they cannot conveniently attend (“they are only the spouse”) or you permit a non-party person you know will have to approve any final resolution to be available by phone or other similar accommodations are made for these all-important participants, for any number of reasons.

My strong recommendation?  Unless you are knowingly scheduling a discovery-only mediation or want to try a “quickie” (See my earlier blog on this subject dated January 18. 2011, entitled, “Negotiation Tip:  Consider a Quickie” ), don’t do it!

And this admonition is just as strong to those mediation co-participants who agree to attend, but do not push equally as hard for the required full participation by all of the others who properly should be present.  It is their mediation as well.  They will need full attendance as well to meet their objectives successfully.

The first practical issue is that even if you are ultimately successful in reaching an agreement with those present, unless all actual parties and their attorneys actually sign a mediation settlement agreement, the agreement if contested by any non-signing party, simply stated, is not valid!   (Worse, it may not even be valid as to signing parties.)

Not a problem, you say?  Well, not until your client (or some other client) changes their mind!  Even insurers cannot bind their insured to a mediation settlement to which the  insured did not agree.  And, issues arising from settlement remorse is the principle post-mediation issue that you will find in the appellate cases regarding just this subject.

The success of your mediation, however, may well depend on the full attendance and participation of all of the required parties and other interested parties and persons for a host of other reasons.

An agreement that the injured spouse agrees upon but without the concurrent signed agreement of the non-present spouse (with or without the consortium claim) is both a legal and practical problem that can become a headache for everyone.

A Personal Representative or Guardian who misses the opportunity for those they represent to observe and actively participate in the resolution of their claim also adds an unnecessary element of question, practically, if not legally.

The insurer who does not have to answer the inquiries of its absent insured about their insurer’s positions and offers  is a loss of  a significant factor in multi-party litigation.  And, the attending insured who may also happen to have personal counsel, present or not, known or not, is critical for any full discussion of their rights.

The inter-personal, professional and business relationships, past or ongoing, between co-parties to litigation should also never be lost to the full discussion due to the absence of a party.  Co-parties may well feel united against a common opponent, but they may also feel that present or past or future equities allow them some input into the thinking of their co-parties.  And they can only express it, directly, by being there with their equal co-party there.

But most of all, knowingly allowing anyone, party or insurer, with the real “checkbook” authority for any resolution, not to personally attend,  is predictably deadly to any mediation.

Have you ever considered how you have unilaterally empowered one carrier over the other by allowing one (or more) carrier not to attend?  Without a word being uttered, the insurer who makes the effort to attend implies a greater interest in the matter than a non-attender.  Worse, the carrier not there knows they have leverage.  After all, wouldn’t someone who was serious about participating, attend?

And, what have you done to your mediator’s chances of assisting you and the others to a global resolution?  How can a mediator be reasonably expected to gain, much less keep, the attention of a claims representative who at best is likely performing several tasks while listening in by phone or at worst, has to have everything repeated or “translated” by someone else because they are not participating in real-time?

The solution:  plan for mediation as soon as you organize your thoughts  (See my earlier blog on this subject dated  December 13, 2010, entitled, “The Weaker Your Position, The Earlier You Should Mediate“) and thus allow yourself sufficient time to obtain participation by all of your participants.

You may also find out quite a bit about your mediation success chances simply from the reception you receive in scheduling it.  Keep good notes, including by your staff, on any excuse given.  Resistance in appearing at mediation is not likely to be a good sign for your chances with that party.

Then carefully consider why there is resistance?  Are you wasting your time (certainly with that participant)?  Why is this or that participant not more interested?  How will their absence affect the remainder of  the participants who do attend?

Of course, there will always be exceptions to any rule.  But, make sure that you objectively assess what you lose by each required participant’s absence.  You will pay dearly with a pro-longed, if not wasted, mediation, if you mis-calculate.

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