OK, so what about insurance carriers? The answer is not quite so black and white, but it's still fairly clear that a representative of the carrier is expected to attend in person, if that is who is funding the settlement. We understand that the ultimate authority might be located in Minnesota or Connecticut, and we don't expect them to fly out for every fender-bender case in California. It's ok to send the local claims rep with limited authority, as long as he can reach out by phone to somebody with full authority. We also understand that it sometimes requires convening a committee to settle a case above certain limits. When information comes out during mediation that suggests the need to do that, that's when we might need to schedule a second session.
Clear enough, but what about the cases with multiple parties, some of whom have very limited involvement or ability to solve the problem? The cases where the parties are so far apart monetarily that it seems a waste of time and money to make people get on a plane? The cases that are so small that the cost of air travel seems to exceed the benefit? The cases where one party simply refuses to attend? And all kinds of other situations, excuses and justifications?
It's not a waste of time to have an extensive discussion about the reasons why personal participation might or might not be important in a case. By working toward an agreement even on that small issue, we have already begun a mediation process instead of a litigation process, because we are identifying the roles and interests of each side. And if the parties can agree on how to proceed, that is going to help them agree on every other issue down the road, large and small.
A lot of people mocked the lengthy negotiations in Paris in 1968 over the shape of the table for the peace talks aimed at ending the Vietnam War. But those negotiations were essential to determining the status and relationship and interests of the four parties to the peace talks. And the difficulties in resolving those preliminary issues foreshadowed the difficult negotiations ahead. For similar reasons, negotiations over who needs to attend a mediation should not be short-circuited by a peremptory ruling by the mediator. What the mediator needs to do is help the parties resolve that issue themselves.
(Malcolm McPhee photo from Duckrabbit)