Careful consideration needs to be given as to who should attend the mediation on behalf of the client.
No two cases are the same, but, in each case the right or wrong decision can have an important impact.
Here are 5 things to consider:
- Who is coming from the other side?
- Matching party attendees?
- People attending with a direct involvement in the dispute?
- Do you bring your key witness?
- Decision maker always in attendance?
Who is Coming from the Other Side and Matching Party Attendees?
Consider first who you want to attend from your side, and why, and liaise with the other party to find out who will be attending on their side.
Discuss this in advance to try to ensure that all sides are comfortable that the right individuals will be present—i.e. those who are most likely to be able to assist in reaching an acceptable solution.
All too often the parties don’t discuss who is coming until the last minute. This can lead to a mismatch and hamper progress. Matching attendees- in terms of seniority, or experience or qualification- can help.
For example, if one side believes that there is value in bringing their expert-which can sometimes be productive- should you do the same? If you don’t see the need, discuss this and see if agreement can be reached in advance.
Similarly, where one side is attending with senior management, seek to match their presence from your side.
In a recent mediation, a customer sued his bank for breach of mandate and negligent advice. He was based overseas and travelled to the UK for the mediation. He was the owner of many businesses and influential within his marketplace. Although the bank believed some of his claims to be weak, they, very sensibly, attended the mediation with one of their most senior bankers. Not only did this give face to the customer but it matched his expectations as to the seriousness of issues.
This made settlement much easier.
In another mediation where one party attended with its CEO and the other with a junior sales manager the mismatch in positions-and experiencesignificantly impacted adversely on the settlement position.
Find out who is attending from the other side, who they expect to attend from your side and consider appropriate matching.
People Attending with a Direct Involvement in the Dispute?
It is very difficult to evaluate the strengths and weaknesses of a dispute in which you are personally involved.
There is an inherent conflict, a natural tendency towards defensiveness, an inbuilt lack of objectivity and a leaning towards confirmation bias.
Lawyers can stand back and assess these issues dispassionately, but they are not the decision makers.
To the extent possible, the decision maker on the day needs to be free from underlying emotions in order to assess the commercial and other drivers to settlement.
Balanced against this, of course, is the need for someone who was directly involved to be present who can set out, clarify what happened, help to evaluate and critique points put forward by the other side, present the issues from a position of strength and direct knowledge, and, similarly, challenge the other parties’ presentation.
Weigh up carefully the obvious value of having the person(s) at the centre of the dispute playing a lead role with the potential risks. Consider having a separate decision maker present unaffected by prior involvement.
Do you Bring your Key Witness?
This can be a tricky area.
In a joint open session, do you want to expose your key witness to the other side, e.g, in a case where witness evidence may be crucial?
The other side-or at least their lawyers- may not have seen your key witness before and this is an opportunity to make an impact.
Where your witness is likely to come across as credible, reliable, articulate and compelling, this may be an easy decision, but what if he/she may not come across well- e.g is overawed by the situation, or, in truth, lacks some credibility?
As a general comment it is much better to know how a witness will perform early in the litigation process rather than at trial, but, if in doubt, do you want to create a hostage to fortune?
In a joint session, there is no need for the party witness to be directly involved but if he/she is going to speak, you can always seek to protect them by making it clear that this is not an opportunity for cross examination—but there are risks.
On a number of occasions, I have seen a claimant’s case crumble during a joint session with the other side when the claimants have chosen to speak to express their views and come across in such a way as to give considerable support to the defence’s position.
Equally, I have seen some very strong and impressive performances from claimants in person which have quickly persuaded defendants that the prospects of successfully challenging some areas of evidence at trial are much weaker than they may have thought before seeing the key witness in action.
Thoroughly prepare the attendee(s) for any face to face discussions. Plan in advance how to maximise the impact of their presentation and minimise any avoidable risks. Ensure that they are protected from attempted hostile cross-examination.
Decision Maker Always in Attendance?
The mediator will want to ensure that the parties have appropriate authority to settle the dispute at mediation. Sometimes, inevitably, this will be up to a certain limit only. Beyond that further authority has to be sought.
The decision maker should normally be present, but sometimes this is not possible, and sometimes their absence can be and is used as a tactic within the process.
Views as to settlement do change during the course of a mediation. Momentum swings do occur. If you are not present, do not fully engage in all of the arguments, do not hear counter positions etc, it is very hard for you to weigh up options for settlement as easily as it would be if you had been fully involved.
On the other hand, sometimes those present can get carried away by the process and a reality check call to the absent decision maker can be the right call.
What is sensible is to try to match the attendees- see above - and, if one decision maker is attending, to ensure the other one does too.
Where possible have the decision maker present throughout the mediation. If this is not possible, ensure that those who are present have immediate access to him/her-including outside office hours.