The Importance of Having the “Decider” at Mediation.

No, I’m not actually talking about the decider, George W. Bush, but the ultimate decision maker.

While there is no authoritative definition of “mediation,” I think most would agree that a key to successful mediation is the meaningful participation of the parties.  All too often, I am asked to mediate cases involving businesses or insurers who send only their counsel to mediation.  And all too often, these cases don’t settle.

An adjuster, EVP or C-level officer “available by phone” doesn’t truly engage the other side.  They are not forced to participate in candid discussions about the strengths (and possibly more importantly) the weaknesses of their case.  They cannot look the other side in their eye and assess their credibility or whether they would make a sympathetic witness.  There are an infinite number of things that can occur in a mediation that change a party’s assessment of a case, few of which can be communicated “over the phone.”  Failing to send the ultimate decision maker also sends the not-too-subtle message that “your case really is not that important to us.”

To their credit, most of the attorneys I see in such mediations lament the absence of their corporate representative and do an admirable job without the person with final settlement authority; but it is very difficult to get the decision maker to move from an entrenched position unless they directly and fully participate.