Every mediator carries a mental checklist: things to confirm before any mediation gets underway.
- Have all parties signed the mediation agreement?
- What time does the venue close?
- Are the real/ultimate decision-makers in attendance?
Usually, it’s all straightforward. Occasionally, though, participants confess an absence of authority to take binding settlement decisions. This presents an obstacle, but not an insuperable one.
Lack of delegated authority may be borne of necessity, rather than a failure to prepare or an absence of commitment. If the parties are individuals or small organisations/companies, the key personnel tend to be present. Decision-making is streamlined and quick. But it’s more ponderous in large corporations and public sector bodies. They are necessarily hierarchical; working through committees whose recommendations must be reported to and approved by a higher body or board (which may meet quite infrequently).
How should the mediation process accommodate this, without losing momentum?
Typically, the solution is to ensure in advance that the decision-makers are readily contactable during the mediation. For best results, they should be involved with the evolving negotiations; not presented with a binary decision, out of the blue, at the end of the day. Often a committee or board can delegate power to a small sub-group (or just the chair): either an unfettered power, or power to settle up to some pre-determined limit.
Sometimes, however, internal procedural/legal requirements simply rule this out; for one party or more. A trade union might need to ballot its members. A local authority may have to wait for the next full council meeting. In such situations, the best that can be done on the day is to identify the person(s) or group(s) who will make recommendations to the ultimate decision-maker and to ensure that they support the proposed deal. With such backing, it would be surprising for the proposal not to be endorsed. The settlement agreement will then record:
- that and how the dispute has been settled, subject to the approval of some designated decision-maker(s) by a specified date; and
- the undertaking of the designated person(s) or group(s) to recommend such approval.
View Mediator Profile
