Who should attend the mediation?

A frequently asked question, answered here by Andrew Miller QC and Rebecca Attree

 

Andrew:

I’m often asked by solicitors whether they should bring counsel to a mediation. I reply that it’s their choice and that of their client. When pressed on the issue of having counsel at mediation I will often ask the solicitor, ‘Do you consider that your counsel is mediation-friendly? Will they support

your client and the process and will they work to find a settlement solution?’ At a recent mediation during a joint session counsel spent 30 minutes reading from authorities, which were mentioned in the mediation statement and didn’t need to be repeated. The concertation was therefore totally on rights and wrongs and on positions and not issues. As such it inevitably put the whole process back and didn’t do anything at all to change the other parties’ perspective of the merits of their own case. That counsel wasn’t what I would describe as being mediation-friendly!

With mediation you’re investing in a process, that process has an aim and that aim is to bring a dispute to an end. You want to have participants in your room who are going to work with the mediator on that process and do everything they can to move the process towards settlement. That has to include both the lay clients and their lawyers.

 

Rebecca:

When it comes to who will attend on behalf of the client, I think having one senior key decision makerpresent can be a good approach. It can work well to have someone who hasn’t been involved in the history, detail and angst of the dispute. For example this was the case in a care home franchise dispute I mediated where the recently appointed Finance Director attended the mediation. Not having been involved in the circumstances that gave rise to the dispute, the FD was able to step back from the detail and make a ‘big picture’ decision without emotion. Their main role was to assess the risk of the case going to trial, which is often a big part of what clients are doing at a mediation.

If you’re going to have more than one person attend on behalf of your client, try to have people who adopt a similar approach. Otherwise you might have a ‘split’ room and before you know it the mediator is mediating in one room between individuals. As an example, a large freehold company was bringing a claim against multiple leaseholders for service charges. One of the directors was a resident of the block and had their own personal views, while another director held their property as a long-term investment. What brought it all together was the presence of the managing agent who could bring an overall view as to what would be in the best interests of the property as a whole.

 

Andrew:

Remember, also, that in this new world we have hybrid mediation. In a recent face to face mediation of mine there were a couple of key people who weren’t physically in the room but were able to be there the whole time via Zoom.

 

Rebecca:

Yes, in my experience I’m seeing more people attend on Zoom than I would usually see for wholly in-person mediations. The downside of multiple attendees is it can be difficult (and time consuming) for them to reach a consensus. The advantage with Zoom is the client can bring together the expertise of a number of key individuals in a practical and cost- effective way.