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Mediation: Use Extreme Caution When Waiving Any Participant’s Personal Appearance

June 8, 2012

Everyone wants to be liked.  And, when an opponent asks a favor, it is quite normal to want to oblige if for no other reason than to be cooperative.  And, cooperation  can be very useful in mediation where ultimately you are seeking something from your opposition.

But when it comes to permitting the non-personal attendance of a required participant at mediation, be very, very cautious.  And, when in doubt, decline!

And particularly when the person who wishes not to attend, personally, is exactly the one you need for your mediation efforts to be successful.

I addressed this critical subject of  proper attendance requirements, earlier.  See,Successful Mediation Requires All Participants Attend“, March 21, 2011.  But the increasing frequency of an all-important participant missing from personal attendance at mediation directly leading to that mediation’s failure suggests  emphasis by repetition and expansion on the subject to be desirable.

It is rarely any plaintiff who “begs off” personal mediation attendance.  After all, it is generally believed that mediation, and particularly early mediation, is “good” for the plaintiff .  And, of course, rarely is the plaintiff asked to write a check.

And, frankly, it is not all that common for any individual or corporate defendant,  particularly those who have any actual “say” in mediation, to even ask to be excused.  Most actual defendants are just as anxious as the plaintiff to have the matter resolved.  And, most  also see mediation as the quickest and least expensive means to end their strife.

Occasionally, some disinterested and insured defendants will try to avoid personal appearances, but remember, you need their signatures on any mediation settlement agreement for it to be valid.

(And, beware of permitting any insured defendant, individual or corporate, particularly those under-insured,  to not personally attend!  You will need that defendant to participate actively with their insurer to resolution.  Remember, the insurer has more allegiance to their insured than to any claimant.  And, the only defense attorney normally present ethically represents the insured first and the insurer second.)

Who then, is the most frequent mediation “party” to request a non personal or telephone attendance at mediation? 

Answer:  The insurance representative.  And, particularly the “one” with the real authority to resolve the matter.

I fully understand the reticence of these insurance professionals to personally attend these formal conferences.  They are quite busy and travel is tiresome.   Many become quite jaded, if not abused, with the process.  And, most participate in more mediation than mediators!

What I do not understand is why any thoughtful opposing participant would agree for them NOT to attend.

Nor do I understand why any insurance professional would not understand why their personal attendance (or their trusted insurance stand-in) is so critical to the integrity and validity of the entire  mediation procedure.

(For example, what insurance professional would consider attending any mediation without the plaintiff being personally present?)

Those “in the know” in mediation procedure circles recently successfully obtained significant revisions in required attendance policies for mediation with important changes to Rule 1.720, FRCP.  The clear intent of these changes was to reinforce the need for the personal presence of those indispensable parties to any successful mediation.

Make no mistake, when insurance is involved in a dispute, the entire mediation position of any defendant is totally driven by their insurer.   If there is one indispensable party to their mediations, it is their insurer.

Their insurer normally selects, hires and pays the defendant’s counsel.   Significantly, however, they seldom will pay “personal counsel”.   With rare exception, those attorneys selected for a defendant  usually have no prior or subsequent contact with the party-defendant client.  But these same attorneys are routinely in an ongoing relationship with that insurer with other insured-clients.

The insurer normally directs the entire litigation process, including what monies are spent for fees and litigation costs in preparation and/or trial.  The insurer, even with deductible considerations, then usually is the sole ultimate decision-maker whether the case will be tried or resolution even attempted.

And, increasingly, distressingly, those decisions are often made with less and less reliance upon the recommendations of the local counsel they retained for their insured.

Not only does our entire  legal system believe insurance representatives at mediation are an indispensable party to any possibility of  mediation success (note: they are required to personally attend mediation as a “party” in Florida despite not even being a formal party!), but the simple fear of losing such insurance coverage by being found in conflict with their insurance policy terms can practically paralyze any other insured party from any other  meaningful participation in their absence!

My father used to say that “anything important needs to be communicated in person”.   He meant that any spoken or written word, without the personal involvement of eye contact, voice inflection and volume, and nuances of body language, simply cannot convey the complete message intended.

You already know this.  When is the last time you opted attendance with a telephone-only judicial hearing upon any important matter?

And, any formal conference that must depend upon solely a telephone contact for such a representative is usually effectively “stuck” with the position such a non-attending person already holds well before the conference.

The non-attender cannot see any exhibit as it is being described, cannot see and evaluate the opposing counsel’s persuasiveness or the opposition as witnesses, and if applicable, cannot evaluate sincerity or any other human emotion of any of the participants ( including from their own representatives who can!)

Clearly,  therefore, nothing said or done at the conference can ever have an equal effect upon a non-attender compared to an attender.  Otherwise, why not have ALL of the parties attend mediation by telephone?

And, what message does it send when any participant conveys their lack of interest in your mediation by their non-attendance?  Don’t you think they would attend if they felt it important?  If they won’t even attend your conference, what makes you think they meaningfully participate in it by telephone?  Or, even prepare for it?

And, if one of the participants feels that way, what effect does it have on the others who may be coming with the intent of finding success?

And, how do you obtain and then retain the attention of a non-attender for the face to face conference you are relying upon to have meaningful participation?

As boring as mediation can be when the mediator is working with others, at the least any attending participant is generally concentrating on only that single matter.  They have little choice due to logistics and little outside interference.

What constrains the non-attender to a similar forced-attention?   And, how can you even know the non-attender is paying attention?

So why are these non-attenders not personally attending “with the permission of their opponents”?

One argument I commonly hear is that the “real” authority simply cannot/will not make the trip.    Accordingly, they must attend by phone or go to the expense to hire someone to “merely stand-in”.

And, the unspoken “threat”:  “If you force them to hire someone, or worse, attend personally, you will lose their “favor“.

What favor?  Do you really think that any professional insurance risk analysis appraisal is based upon whether they like you or not?  (I do suggest you not antagonize them, but I also suggest you cannot buy them with niceness!)

And, frankly, rarely does the “real ultimate authority” attend in most mediations.  As I have pointed out in prior articles, in any significant matter, any corporate decision, including insurance, will almost always be a decision made by a group, not an individual.  Ultimately, anyone present always represents others not present.

Therefore, give me a stand-in, personally present, any day, rather than simply a telephone participant!

Even stand-in’s have standing with the person hiring them to become their eyes and ears.  Telephones may have ears, but they do not, usually, have eyes!  Much that can be learned at mediation is learned through the eyes.  And, even the “rent-a-local adjuster” is a trained insurance professional whose opinions are usually valued by those who retain them.

And, I do not mean to diminish the insurer’s attorney’s (or the one hired  by the insurer for the defendant) role in conveying information and recommendations.  But can you understand that TWO persons conveying a common thought to someone on the phone has twice the weight as one?

And, frankly, attorneys and insurance professionals don’t always agree on everything!

In fact, I have no doubt that any defense attorney would themselves prefer their insurance representative with the ultimate total authority be personally present at mediation.  (If they do not, I would question to whom they owe their primary allegiance, their client or their client’s insurer.  Can any attorney really believe a non-appearance is a good thing for their client?)

And, I understand that Plaintiffs want “happy” opponents when they mediate.  And, if possible, I do too.

But, a “happy” opponent who has already decided that your mediation is not worth their attendance, is of  no benefit to the attendees.  You are far better off by having an “unhappy” opponent physically present, hearing your presentation.

Both may be a waste of time.  But, the difference?  It wasn’t a waste of everyone else’s time except the non-attender!   At least, if the non-attender attends (or sends a “representative”), their decision then to make no effort at the mediation conference is also their waste of time!

I understand wanting to be a nice guy or gal.  But, gutting your best chance at resolution by permitting a key participant not to personally attend mediation may not be the best use of your “niceness”.

Think, very, very carefully before excusing the personal attendance of any participant required by law or the rules of mediation procedure.

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