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.

Mediation Tips for the Practitioner from a Savvy Plaintiff’s Attorney

Vickie Pynchon is taking a break from blogging while campaigning for one of the Presidential candidates.  In the meantime, she has asked some guest bloggers to post content.  On Tuesday, Brian Herrington, a plaintiff’s lawyer from Mississippi offered some useful tips on preparing for mediation from a practitioner’s perspective.

After a mediation fell apart on Tuesday because the ultimate decision maker did not attend and was not privy to the discussions necessary to allow him to make an informed decision, I could not agree more with Brian’s assertion, “Make sure the money person is there.” Brian states that he

will no longer attend a mediation unless the individual authorized to write the settlement check is present.   None of this, “We have to get on the phone and see what corporate says” for me. You do not want to mediate with defense counsel only.

Good stuff in Vickie’s absence.