Stakeholder Participation Is Crucial

In a perfect world, everybody with a stake in the outcome of litigation should be physically present at a mediation session. This is particularly true of those who will make the decision whether to settle or not. In civil litigation, this usually means the plaintiff on the one side, and the insurance company’s claims representative on the other. Let’s face it, litigation is more likely to settle before trial when all participants have prepared at the same time, and deal with each other at the same time and the same place.

Sometimes, however, there are pressures, usually economic, that make it difficult to achieve perfection, particularly in the garden-variety auto accident case, where injuries are moderate, liability is fairly cut and dried, and the claims rep’s office is 1,500 miles away in Jefferson Parish, Louisiana.

If you represent a party in such a situation, it is crucial to maintain as much of a communications link as possible between the absent stakeholder/decision maker and the mediator, parties and attorneys on the scene. Since instant decisions must often be made, it is important that all participants be instantly available.

The usual procedure is to have the absent party/ies "available by speaker phone." This can help, but, human nature being what it is, the people who are only peripherally involved invariably are not as focused on the mediation as are those who are physically present. They do not have the same "feel" for the situation. To paraphrase Kenny Rogers: How can they know what the cards are, if they can’t see how the other people hold their eyes? Moreover, sitting at a desk far removed from the action, other work usually intrudes, and events on the other side of the country are sometimes regarded as a distraction or a side show.

If one or more participants cannot be physically present, all efforts must be made to make sure those not present are, nonetheless, as involved as possible. There should be frequent communication between the participants at the mediation and the participants who are not. One hint: Don’t rely on land lines alone. For example, it is too much to expect a busy claims rep on the west coast to go to lunch at the same time as the "live" participants when the mediation itself is on the east coast; there is a three-hour time difference. A party’s representatives, when split in that fashion, should exchange cell phone numbers in advance of the mediation session, so that there will be no delays when decisions are necessary.