Decision Makers Present?

By: Joel Reck

One of the basic and intuitively obvious mediation practices that is taught in courses that train mediators (TMG uses a very effective hypothetical) is that the decision makers need to be present at the mediation.  Simple, right?  Wrong!  Not always so simple in practice!

My custom, like that of many, if not most, mediators, is to be sure that the question of whom will be present at the mediation is discussed in the pre-mediation conference call with the lawyers.  But several situations often arise, which present real challenges to having all of the decision makers present.

In a dispute involving an asset, whether real estate or personal property, the identity of each of the decision makers is often not apparent, especially when title is held by a limited liability company, corporation or trust.   Even if the identity of the principal decision maker seems obvious, is there an additional undisclosed principal?  Further challenges are presented because parties are often geographically remote or traveling.  In a case where all or a substantial part of settlement payments will be made by an out-of-state insurance company, the company is sometimes reluctant to send the adjuster to the mediation.

In residential real estate disputes, title to property is often held by spouses as tenants by the entirety.  Who is the decision maker—the real decision maker?  One of them or both?  The respective lawyers often provide this answer, but I have found that it’s a good idea, as mediator, to remain somewhat skeptical.   The answer, if there is one, shouldn’t control who needs to attend the mediation in person.  Both spouses should be present.

I had a mediation of a residential boundary line dispute in which I was assured by the lawyer for the husband that his client was the decision maker and that all of the conversations with his client had only been with the husband.  When I pushed back and pressed for the wife also to be present at the mediation, I was told that she had babies at home and would not be able to attend.   I asked the lawyer if he would be willing to talk with the wife and confirm that the husband would have complete authority to settle this case and that the wife would be available by phone throughout the day if we needed her.  This conversation was held and the lawyer confirmed this understanding to me.  Sometime after 6 pm on the day of the mediation, when everyone was tired, frustrated and hungry, we finally reached a settlement and drafted a settlement agreement.  But the husband wanted to talk to his wife before he signed it, which seemed entirely reasonable, notwithstanding his authority.   After a half hour private conversation, the wife nixed the deal.  I don’t know what happened to the husband!

In cases involving anticipated payment by an out-of-state insurance company, pressing the attorney for the insured about the importance of having the adjuster present often accomplishes nothing more than the assurance that the adjuster will be available by telephone.  But one or more telephone briefings is almost never a substitute for participating in the mediation in person and seeing and feeling first hand what the positions and the dynamics are between the parties.  The impact of this in-person participatory gap is, of course, exacerbated when the adjuster and lawyer have not previously worked together.  A further insurance company problem, which sometimes forces another mediation session even when the adjuster is present, occurs when the adjuster is unable to reach his or her boss to get further authority, despite assurances at the pre-mediation conference call that the party or parties who can give additional authority will be available by telephone.

So, what is the best practice for a mediator prior to the commencement of the mediation in insuring that the decision makers will be present?  I haven’t found a perfect or even nearly perfect solution.  But I have found that by thoroughly discussing this issue with the attorneys in the pre-mediation conference call and by really pressing them about the specifics of this problem, the risk of the settlement foundering for lack of all of the decision makers being present at the mediation is substantially reduced.  Why?  Because these extra efforts sometimes result in someone coming to the mediation who otherwise would not have attended.  In other cases, this pre-mediation focus leads to a conversation with the unavailable person and a workable undertaking that his or her absence will not undo all of the hard work that is accomplished at the mediation.