Malone & Nelson
Knock, Knock. Who's There (at Mediation)?
The most common two problems I've seen lawyers experience at mediation, both of which are avoidable, are not having the right people there and having the wrong people there. Yes, sometimes these can happen at the same mediation (what a nightmare). Every mediation comes with its many unique challenges. However, the key is to avoid those you can, and be aware of others in advance in order to prepare for them. Who is present at the mediation should not come as a surprise to you or your mediator.
Having the right people participating in the mediation is critical to its success. Our rules require it, and most courts double down on it by including a specific provision in their Order sending the case to mediation. Rule 6 of Alabama’s Civil Court Mediation Rules provides, in pertinent part: “Each party, or that party’s representative, must be prepared to discuss during mediation sessions the issues submitted to mediation and, unless otherwise expressly agreed upon by the parties or ordered by the court before the first mediation session, someone with authority to settle those issues must be present at the mediation session or reasonably available to authorize settlement during the mediation session.” Of course, these rules only apply to mediations which are court ordered or which arise out of a civil action pending in a court of this state or if the parties otherwise agree. Regardless of whether it is mandated, a mediation is not on the path to a negotiated settlement if someone who has the authority to settle isn’t there or reasonably available to authorize it. That’s just common sense, right? If they aren’t participating, then one must question whether they share the goal of settling the case. It is a good idea to discuss who needs to be there, or available, in advance of the mediation session. Review the court order (if there is one) to see what it says. It may require someone to be there. These days, with the frequency and ease of being present virtually, there is little excuse for someone not to participate. If you aren’t sure who needs to be there, talk to the mediator in advance about it. Get his ideas, thoughts, and suggestions, or if you know who needs to be there but can’t convince them, perhaps the court or the mediator can help by ordering them to be there. The key is to deal with this issue in advance, not on the day of the mediation.
The other problem I hear about is having the wrong person at the mediation. Having the new wife or girlfriend at the domestic mediation is rarely a good idea. It’s much easier to prevent the wrong person from coming than it is to usher them out once they are there. And don’t think they won’t have an impact on the negotiations once you have ousted them. Virtually everyone is able to communicate via some form of text transmission these days.
If you anticipate a problem with someone who plans to be there, talk to the mediator ahead of time. If they aren’t a party, the mediator might give you the excuse you need to keep them away. If you know that your client is going to be consulting with someone before agreeing to a settlement, there is no hard and fast rule about whether that person should be there or not. I generally err on the side of not. We can always bring them in later (or reach out to them via telephone or Zoom) if it looks like they will be helpful. It could be that if you are aware of their existence in advance, during caucuses, you and the mediator can give your client the ammo that he or she needs to justify a settlement to the third party.