Sunday, August 19, 2012

Who needs to attend?

This question comes up a lot. And the answer seems simple. Parties need to personally appear at mediation. In private mediations, we decide who should attend when we set up the mediation. In court-annexed mediation, there are rules addressing this question. In LA County Superior Court, for example, it's local rule 3.272 now. In the Central District of California Federal District Court, it's local rule 16-15.5. Both say parties need to attend in person. If there is any question about who on behalf of a corporate or other type of organization should appear, it should be someone with full authority to settle the case. Everybody understands and agrees that mediation doesn't work as well without the personal attendance and full attention of the decision-makers. (See my prior post on the pitfalls of mediation by telephone.) So personal attendance is required.

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?

Here's where we get to the part of the rules that I'm not so crazy about, because in these situations, court-appointed mediators are given the authority to excuse the non-appearance of a party if the mediator thinks that is justified. That seems reasonable enough and a logical grant of authority to the mediator to control the proceeding, but I'm not comfortable with even that amount of decision-making power. Why? Because that puts the mediator in a similar position to that of a judge, who has to make a ruling that favors one party or the other. That grants the mediator the authority either to coerce a party who does not want to attend into attending, or to excuse a party that the other side thinks should attend. And that turns the proceeding is something antithetical to mediation.

The way I like to handle these situations is to try to get agreement on the question. If a lawyer shows up without his or her client there in person, I'll ask the other side if they think we can get something accomplished in these less than optimal circumstances. If they agree, I'm willing to proceed. If not, we might have more to talk about before we can proceed. If one side asks me in advance if it's ok to have the client available by telephone, I'll ask whether the other side has agreed to that, and I'll usually want to have a conference call with the attorneys. If on the other hand, a party thinks that compelling somebody to appear in person at a mediation is going to be helpful in the same way that making that party attend a deposition or answer written discovery can be helpful, that's a litigation tactic that I'm not interested in assisting. I'm probably not going to excuse that party either, but I'm going to want to talk about what we can accomplish in that party's absence.

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)

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