Importance of Bringing the Right People to the Mediation
by Norman Brand
Whom you bring to a mediation has a major impact on whether the mediation succeeds or fails. This may seem obvious,
but making a decision on whom to bring is not always easy. There are important tactical considerations for both sides,
including reacting to the other side's choices. In some instances, if a particular person is not present there is no point
in going forward with the mediation. Whom you should bring, how you should react to the other side's choices, and what
you need from the mediator depend on whether you are a plaintiff or defendant.
If you represent an individual plaintiff, it is obvious that the plaintiff must be at the mediation. If you are concerned about
the plaintiffs emotional state or readiness to face someone on the other side, there are three things to remember. First,
you cannot protect the plaintiff completely. The plaintiff will be deposed before any trial, and your opponent will have the
opportunity to assess whether the plaintiff will make an effective witness.
Second, you can let the mediator know early in the mediation that your client prefers to speak in private caucus. You can
take a forceful legal position in the joint meeting and let the mediator hear directly from your client only when you are
alone. While the mediator will also assess your client's potential as a witness, and that will be a factor in developing a
realistic range of settlement, the mediation will not be a vehicle for conveying your plaintiff's weakness to the opponent.
Third, you can bring a person to the mediation who will make your client more comfortable. For instance, if your client is
uncomfortable making decisions without his or her spouse, bring the spouse. The mediator may not permit the spouse to
speak in a joint session, but that will not prevent the mediator from hearing a spouse's view in private caucus.
Indeed, sometimes a spouse is absolutely necessary to settle the case. The underlying factual issues in the case,
particularly in employment related cases, may have had an effect on the spouse as well as the plaintiff. The spouse
may be holding out for a certain resolution or some form of perceived vindication while the plaintiff is actually interested
in a different resolution. In some instances, the mediator can help settle the case by making this implicit dynamic explicit and speaking directly to the spouse. Where the remedy the spouse wants is not available through litigation, the mediator may be able to refocus the spouse on available remedies.
If you represent an individual defendant, your choices about whom to bring to the mediation are similar to plaintiff's. If an
insurance company is involved, the adjuster must be at the mediation if you want to have a chance of success. If the
adjuster is only available by telephone, the mediation becomes impossibly difficult. A mediator who is unable to talk
directly to the person with authority to settle the case must rely on defense counsel to accurately convey communications
back and forth between adjuster and mediator. Even if defense counsel is completely honest, wholly committed to
settlement, and has the communication skills of David Gergen, this process is unlikely to work. There is too much loss
of the nuance that mediation relies on to succeed.
If you are plaintiff's counsel and the defense shows up at a mediation without an adjuster, you are probably better
off leaving. Unless there is a real scheduling problem that could not have been foreseen, it is usually a signal that the
defense is either insufficiently serious about mediation or wants to use mediation to have you change your position
without having any obligation to reconsider its own. If a positional bargainer comes to the mediation without an adjuster,
you are likely to be asked to bid against yourself. Here's how that works.
Defense counsel announces its full authority to settle and its side's complete willingness to mediate. The adjuster will be
called only if there is a significant change in your initial position that would require more of a response than counsel has
authority for. If you are willing to make a change, counsel is likely to rapidly move to the limits of its authority. Thereafter,
counsel will characterize your concessions as insufficient to take to the adjuster, perhaps even taking the position that the
two of you are essentially partners in trying to move the invisible adjuster. If you are willing to keep moving, counsel will
eventually call the adjuster and then return extremely disappointed with the adjuster's recalcitrance, telling you that you
will have to move more. And so it goes. You have undoubtedly been exposed to this game in other contexts. Unfortunately,
it sometimes shows up in mediation. Your best response is not to play.
If you represent a corporate defendant (in a case where there is no outside insurer) or a public entity, the decision about
whom to bring to the mediation can become extremely complex. With a corporate defendant the representative must be
knowledgeable about the underlying facts of the case and have sufficient authority within the corporation to settle, yet not
so personally invested in the dispute that compromise is a threat. Whom you bring sends a message to your opponent.
If the person you bring is not sufficiently high up in the corporation to convey to the plaintiff that the corporation want to
settle, the plaintiff may be unwilling to move. If there is another person in the corporation who, like the invisible adjuster,
must be called to approve a deal, it is unlikely the mediation will succeed.
How many people you bring also sends a message. If you bring the general counsel of the Fortune 500 parent company as
well as corporate counsel from the subsidiary and assorted vice-presidents and spear carriers, you are sending two
messages: (1) we are serious; (2) we are going to bury you. If you are plaintiff's lawyer and a sole practitioner, you
can use the mediator to level the playing field. First, you can ask the mediator to establish a rule for joint sessions that
only one person on the other side acts as spokesperson. Second, you can refuse to participate in any extended joint
sessions. Let the mediator carry messages between caucuses. A good mediator is unlikely to be intimidated by multiple
counsel. And if the assembled corporate counsel attempt to play "good guy, bad guy" with an experienced mediator, it is
unlikely to be successful.
If you are defense counsel for a public entity, there is often the need to have certain agreements approved by a public
body before they can be effective. A general counsel for the public entity may have authority to make a certain level of
settlement out of a "claims and judgments" account. Larger settlements may require approval of a budget official or the
agency head out of whose budget the settlement will be paid. If the public entity uses an internal or external risk manager,
the risk manager will have only limited authority. If this authority is not enough to settle the case, it will often be necessary
to have the settlement approved by the public body.
If you are plaintiff's counsel suing a public entity there are a couple of ways to improve the chances for a successful
mediation. First, a public entity must have a representative at the mediation if outside counsel is handling the case.
Otherwise, you are again dealing with the "invisible adjuster." If the case is being handled in-house, you should have
a representative of the agency or entity that will have budgetary responsibility for the settlement. Second, remember
that you are dealing with a political entity. You need allies. If you reach an agreement that must be approved by a
public body, make sure that everyone present signs the agreement and that it contains a provision saying the signers
will make every effort to gain approval of the agreement by the public body. If the agreement comes under political fire,
this explicit commitment will help both you and the representatives who signed it. If outside counsel suggests it is the
only one who has to sign the agreement, or if anyone from the public entity insists his or her signature is superfluous,
that is a sure sign the agreement is in danger.
Neither side can dictate whom the other side brings to a mediation, but it is a good idea to talk in advance about who will
be there. If you can agree on who is important to the mediation and whom each side will bring, you have taken the first step
ward resolving the case.
Norman Brand is a San Francisco attorney whose
practice is limited to mediation and arbitration.
R. Michael Kasperzak, Jr.-Dispute Resolution Specialists-(650) 948-5340
Reprinted with permission from the San Francisco Daily Journal (c)