Who Should Attend the Mediation

In some situations, you may want to bring others—such as a witness, a friendly supporter, or a lawyer—along to the mediation. This section will help you decide who should come (and who should stay home).

1. Decision Makers

There must be someone at the mediation who has the authority to agree to a settlement for each side. Obviously, if this is your personal dispute, you are that person. But in disputes involving businesses or public entities, it’s not always clear who has the power to sign off on an agree­ment. It’s important to find this out before the mediation begins. You don’t want to spend hours working in good faith toward a solution, only to find out that the people on the other side of the table aren’t autho­rized to settle the case. In fact, if the other party does not have the authority to make a settlement on behalf of whatever company or organization he represents—and cannot quickly get in touch with someone who does—you should be hesitant to continue the mediation.

If the person’s recommendations are routinely accepted by the powers that be, then you may wish to proceed. However, if you are unable to get such an assurance, it makes very little sense to continue. If you are mediating because of a contractual provision or court order, you can argue that the other side has not mediated in good faith because it failed to send someone with the authority to reach an agreement.

EXAMPLE: Richard Wagner, a claims representative of the Racafrax Insurance Company, comes to the mediation of a personal injury claim with authority to settle only for an amount up to $10,000. He does not inform the other parties or the mediator of this limitation. After several hard-working hours, every- one—including Richard Wagner—agrees that a fair settlement would be $15,000. Only now does Wagner reveal that he cannot agree because he lacks the authority.

QIf you don't have ultimate authority, stay in close touch with someone who does.

If you are coming to a mediation as the representative of a large organization or company, be sure that you have adequate authority. If not, at least arrange for a decision maker to be available by telephone during the time the mediation is expected to last (and get a home telephone number, in case the mediation extends after normal working hours).

2. Others Involved in the Dispute

If your dispute involves an organization, such as a business, nonprofit, club, or government agency, think about whether particular people in the organization have such a strong emotional involvement in the dispute that they might find it hard to agree to a rational settlement. If so, these people may not be able to negotiate successfully, and it’s often best that they not attend the mediation. On the other hand, if they are in a position—and have the ill will—to undermine a settlement, they should probably attend the mediation. Repairing this relationship may be an essential part of finding a workable solution.

EXAMPLE: A computer maker and a parts supplier have a contract dispute about the quality of manufactured parts. At first, the decision makers for each company planned to come to mediation alone to try to work out a settlement that would not only solve the contract problem, but also pave the way for the two companies to do business together in the future. But in this case, a strong personal distrust had developed between the computer maker’s director of engineering and the parts maker’s chief engineer. The decision makers realized that if the antagonism between these two men was not resolved, either would be in a position to sabotage future relations. Therefore, both were invited to attend the mediation—even though they were not decision makers—in order to say their piece to the mediator and to each other.

3. Witnesses

In some mediations, disputants are permitted to bring any witnesses they wish. The purpose of bringing a witness is primarily to support your version of the facts and your opinion of what a reasonable solution might be. For example, if your complaint involves a neighbor who keeps a rusted car in his front yard, you might bring another neighbor to confirm the unsightly condition of the car and help the other side see that it really is an eyesore.

In a mediation, you usually do not ask questions of your witnesses. Instead, the mediator simply invites witnesses to tell what they know about the dispute. The mediator and the other party may then ask your witness questions, but the process looks and feels far more like a conver­sation than a cross-examination.

If you plan to bring a witness, take some time to prepare the person. Review the points you would like the witness to cover, and be sure that statement will be helpful to you. Also explain a bit about how mediation works—knowing that the proceeding is not adversarial should help your witness avoid coming across as too angry or strident.

Although a good witness can help you arrive at a good settlement, there can be downsides to bringing witnesses. Even if your witness is not an “expert” and does not charge you a fee (see below), witnesses usually slow down the mediation, which increases the mediator fees (if you’re paying by the hour). In addition, no matter how much time you spend preparing your witness, you still cannot be sure what will happen if the mediator or the other party asks a question that you did not anticipate. The witness could even end up saying something that undermines your position. For example, if the neighbor says that rusted car in your neighbor’s yard, though it isn’t pretty, is not as much of a neighborhood problem as the two old pick-ups you park on the street, you won’t be too pleased.

QMake sure your neighbor is really your supporter. Talk to any neighbors

whom you plan to bring as a witness about other possible issues the other side might raise, as these come up fairly often in mediation. Make sure that the neighbor supports your broader perspective—that is, that the other party to the mediation is the cause of a neighborhood problem (and that you are not).

Before you invite a witness to attend, consider whether you can present the evidence in some other way, to avoid the delay and risk (and sometimes, cost) of bringing a witness. For example, you might get a written statement from the witness (notarized if possible) and offer it instead of the live testimony. Because you are only using the witness to try to better explain your position and convince the other side that you can prove it if necessary, you don’t lose that much by using the state­ment instead of the person. Also, if you don’t like what the witness says, you don’t have to use it at all. For example, instead of bringing a neigh­bor to support your complaint about the neighbor’s rusted car, you might bring a notarized statement from the witness to that effect, and also include some color photographs of the car taken from different angles.

a. Expert Witnesses

Expert witnesses, such as doctors, accountants, investigators, and others can help show that you would have a strong case if you were to take your dispute to court or arbitration. This type of witness can be ex­tremely valuable in situations where a major issue is the dollar value of an economic loss, but less valuable in neighborhood disputes where convincing someone to change their conduct is your primary concern. For example, if your claim is against an insurance company for injuries involved in a car accident, you can bring your doctor to talk about the extent of your injuries and how they affect your ability to work.

b. Should Your Witness Become a Party to the Mediation?

Sometimes, it might be better to ask a person you would consider bringing as a witness to join you as a party to the mediation. For ex­ample, a tenant in an apartment building who agreed to mediate a dispute with the landlord over poor trash collection in the parking lot might want to bring other tenants to the mediation as witnesses. It may be better, however, to ask them to join the mediation as parties.

One reason for this is that a mediated agreement only applies to the parties in a dispute, not witnesses. Thus, if the mediation agreement said, in effect, “The landlord agrees that rent can be withheld unless parking lot dumpsters are emptied once a week,” this might be a good agreement for the original tenant activist, but it would not let the other tenants in this situation withhold their rent. A better solution would be to sign any willing tenants on to the case. Then they could come to the mediation as parties (or, if the group was too large, they could designate one or two tenants to represent them) and share in the benefits of the mediated agreement. Their participation would also give them added bargaining power at the mediation, and possibly help them achieve more favorable settlement terms.

4. Supportive Friends or Relatives

When you come to mediation, you sit face to face with the other person(s) involved in your dispute. For some shy or easily dominated people, this encounter can be intimidating, even though mediation is informal and most mediators will try to make sure that neither party gets steamrollered by an aggressive adversary.

Any significant power imbalance—no matter what causes it—not only threatens the position of the weaker person; it also affects the entire mediation process. For example, many people who perceive themselves at a disadvantage are extremely reluctant to agree to anything, even a fair solution.

If any of these circumstances apply to you, consider bringing a friend or relative to the mediation to support you and, if necessary, to help you articulate your point of view during the mediation. This not only allows you to prepare and plan together, but also lets you appoint your friend as the keeper of your bottom line.

Your “helper” can be a friend, relative, lawyer, or other professional such as a teacher, social worker, or member of the clergy. But be careful not to let your “helper” become your advocate. Even if the mediator permits it, this would most likely make the other party more defensive and reduce the chances for a settlement.

WITH A LITTLE HELP FROM MOM AND SISTER...

Rebecca, a college student, had worked extremely hard as a part-time advertising salesperson for a magazine and was disputing the amount of commissions she was paid. Only 18 years old, Rebecca felt shy and intimidated by the prospect of facing the publication's advertising director. To help counter this, she brought her older sister and mother with her to the mediation.

Rebecca still did most of the talking, but her family was there to remind her of points she wanted to make and dates that escaped her mind, and to put in a few words now and then about the extent of her work on the magazine's behalf.

Thus supported, Rebecca was able to represent herself adequately in the mediation and to agree with the magazine ad director on what both considered to be a fair settlement.

5. Lawyers

Nearly all mediation rules give you the right to bring a lawyer to the mediation. Lawyers might already be involved in your dispute—for example, if the dispute has progressed to a lawsuit and you are represented by counsel, your lawyer may attend the mediation. Or, you may want to consult with a lawyer during the process, to make sure that any settlement you reach is fair. In general, however, you don’t need a lawyer to mediate. In fact, bringing a lawyer can sometimes undermine the process.

For mediation to be most effective, disputants need to deal with each other directly, air their differences, learn to perceive the dispute from each other’s point of view, and work together to find a resolution. Against this background, bringing a lawyer, who is trained to function in the more adversarial atmosphere of the courtroom, can sometimes be self-defeating—especially in interpersonal disputes involving family, friends, neighbors, or business colleagues. This is particularly likely if a disputant lets the lawyer do most of the talking (bringing and relying on the help of a lawyer is likely to be less of a problem in disputes between more distant parties over money or property).

However, there are times when it makes sense to bring—or at least consult—a lawyer.

a. When Your Lawyer Should Attend

There are some circumstances in which you probably should have your lawyer attend the mediation, such as:

• When complex legal issues are involved and it would be impractical to conduct the mediation without a ready source of legal advice. For example, a town government and a building contractor have a dispute over the contractor’s work on the town hall. Any settlement would have to take into account the company’s compliance with complicated provisions of local building codes and historical preservation rules.

• When substantial amounts of money or property are involved. For example, if your dispute concerns a claim that your former boss sexually harassed you, and you are seeking a $200,000 settlement, you should probably have a lawyer.

• When you lack self-confidence, are intimated by the other party, or need help articulating your position. Bringing a lawyer is one remedy for a “power imbalance,” but this problem can often also be solved by bringing a strong-minded friend or other adviser. In any situation like this, you will have to weigh the benefits against the costs of bringing a lawyer. If a lawyer will charge $200 an hour to represent you, is the dispute big enough to justify that expense?

If you do want to bring a lawyer, try to use one who is experienced in mediation and supports its methods and goals. (For more on finding a lawyer to work with in mediation, see Chapter 13.) Be sure to work out the lawyer’s fee in advance. Many lawyers charge one hourly rate for office work and a higher rate for time spent in court. Because mediation is a lot less work than a trial, a rate somewhere between the “office rate” and the “court rate” would probably be fair.

QAsk your lawyer to stay in the background. Your lawyer doesn’t have to play the lead role at the mediation. For example, you might ask

your lawyer to simply sit quietly and listen. Occasionally, you can have a private conference to be sure that you haven’t left out anything impor­tant and that you are considering all of the legal implications of any proposed settlement terms.

b. Consulting With a Lawyer

If you want formal legal help with your mediation, or you simply want to make sure that your legal information or conclusions are accurate, you can use a lawyer as a consultant or information specialist. Under this model, the lawyer becomes your law coach, providing helpful insights into the more technical legal aspects of your dispute before, during, or even after your mediation sessions.

• Before the mediation: Consult with your lawyer about the issues in dispute. In order to use the law as a benchmark in determining your goals, ask what might happen if your case went to trial or arbitra­tion. For example, in a personal injury case, a lawyer can give you a pretty accurate high and low estimate of how much a judge or jury might award for your type of injuries. Or in a case where you believe someone plagiarized an article you wrote, a lawyer could advise you about how various settlement options might affect your ability to stop others from plagiarizing the same work.

• During the mediation: You can ask a lawyer to remain on call during the session, in case you need immediate help on a particular point. For example, in a business mediation, if you are moving toward a settlement in which you will buy your partner out, you can take a break to call your lawyer and ask about the personal tax conse­quences of various ways of structuring the deal.

• After the mediation: Successful mediation doesn’t always result in an agreement on all the details; sometimes, it provides a sound frame­work for an agreement. Your lawyer can help later with hashing out the fine print. Even if you do reach a detailed agreement, you can condition it on your lawyer’s approval. One way to do this is to have the mediator insert a clause stating that the agreement will take effect one week after it is signed, unless either party objects in writing before that date. During that week, you can ask your lawyer to review the agreement to make sure that it says what you want it to say and that it does not impair your legal rights in any way you did not intend. If you want your written agreement to have the binding effect of a contract, your lawyer can handle this as well. (For more on conditioning an agreement on your lawyer’s review and drafting an agreement in the form of a contract, see Chapter 7.) ■