Decision Makers

Posted by laura dern on March 11th, 2021

Decision Makers -

It is important for you, as well as the medi­ator, to determine who needs to attend the mediation so that a binding resolution can be reached. In the case of an insured defendant, small business lawyers telephone standby is not a substitute for per­sonal participation by the insurance represen­tative. In court-connected mediations, written permission from the judge is often required before an insurance representative is excused from personal attendance. More importantly, the representative who is handling the claim should attend. Too often, at the start of the mediation, the representative states that he or she has just picked up the file or is filling in for the person to which the claim is assigned.

With corporate parties, a person with real settlement authority should attend. A resolution that is subject to approval by the board or CEO is no resolution at all. There husband and wife are parties, both must attend the mediation. Even if one spouse has a power of attorney or claims authority to enter into a binding settlement, typically that spouse is unwilling to commit to a settlement without first contacting the non-attending spouse for approval. Because mediation is a participato­ry interactive process, the failure of all deci­sion makers to attend creates a serious obsta­cle to resolution. The possibility that the key decision-maker will not attend may be a legitimate reason to decline to proceed with mediation. If the matter is a court-connected mediation, the court's assistance may be needed to ensure the attendance of all deci­sion makers. In other matters, a pre-mediation conference may be an ideal way to resolve this dilemma.

- Exchange of Information -

To evaluate liability and damages, relevant documents must be exchanged before the mediation. This is particularly so for defen­dants because documents related to damages are almost always solely in plaintiffs’ possession. A pre-mediation conference can avoid the situation where the mediation must be continued because relevant documents are absent. At the pre-mediation conference, enlist the mediator's help in ensuring that needed documents will be provided before the mediation.

-The Need for a Joint Session -

If you believe it is unwise to have all parties participate in the initial joint session, you should raise this issue at the pre-mediation conference. Most mediators believe that joint sessions should be held to allow the mediator to provide the parties, as opposed to their attorneys, with information concerning the mediator's background, particularly his or her experience involving the claims asserted; an explanation of the mediation process, including its voluntariness and mediation confiden­tiality; and to  permit  counsel to address  the opposing party or insurance representative without that party's attorney acting as a fil­ter. If you represent plaintiffs, the mediation is usually the first opportunity for the insur­ ance representative to evaluate your client's demeanor and witness potential where a party feels strongly that the joint session should be avoided, because the case involves a sexual assault, or where there is a possibility that the parties might come to blows, the mediator almost certainly will forgo a joint session and proceed directly to a private caucus. Other matters that may impact the joint session include cultural issues, handicapped or disabled parties, attendance of experts and non-parties, such as a party's "trusted adviser."