If I’m being honest, I cringe every time I conduct a mediation where the defendant’s party representative participates by telephone, or not at all. Unfortunately, I see this happening more and more often.

Having said this, I can think of several plausible reasons why client representatives wouldn’t attend a mediation — including

  • The representative is located a great distance from the mediation.
  • The amount in dispute does not justify the expense for attendance.
  • The settlement authority is predetermined and attendance will not affect the authority.
  • You can’t be in two places at one time.
I recommend requiring it.

Some courts have anticipated this problem, and require both parties have a representative present, with authority to negotiate a settlement. That’s certainly my preference. Other courts let the parties decide whether or not their representatives should be present.

I’ve conducted any number mediations without a party representative present, and I’ll admit that most have been successfully resolved. However, in those cases, I find my role is often more of a delivery boy — shuttling settlement offers back and forth — than an effective mediator, testing the parties’ positions. The reason is obvious. It’s difficult to have meaningful discussions with representatives who aren’t present. Even if they’re listening-in by telephone, the vast majority of discussions that take place during a mediation are held outside their presence.

Mediation is a contact sport.

For the process to work the way it’s designed, parties need to participate. As parties invest time, energy and money in the process, positions often soften and change. As information is exchanged during the process, parties become enlightened and educated. By hearing the opinions of a neutral third party mediator, parties are exposed to previously unseen weaknesses in their cases; and very often, they and their attorneys discuss — for the first time — the risk of loss from a bad result.

These are all part of the process, which works to help settle cases. The true benefits of the process are difficult, or impossible, to reap when a party representative is acting by phone, or not participating in the mediation at all.

It’s your job. Don’t let them take it away.

More and more often, I get the sense that defense attorneys are treated like gladiators, rather than members of settlement teams. Parties want defense counsel to fight their battles, but not determine settlement amounts. When this occurs, and the defendant has nobody present at the mediation who’s involved in determining the settlement amount, the process simply doesn’t work the way it’s designed.

Maybe you can’t make your clients send representatives to your mediations, but you can ask the court to order them to do so. If you agree with me, it’s something to consider.

Enjoy the journey!