We know that the presence of true decision makers enhances the quality of the mediation process and the likelihood of resolution. What if those decision makers are not parties to a legal case being mediated?
Let’s take this scenario: Husband is the sole plaintiff in a contentious case arising from an auto accident. Counsel are not playing well together and agree on little. At a deposition early on in the case, an insurance adjuster wanted to sit in and plaintiff’s counsel refused to allow this. Routine requests for extensions have been refused and the case has been adversarial at every level.
The parties arrive at mediation, and the plaintiff is accompanied by his wife. Defense counsel, apparently seeking a little payback, announces that because the wife is not a party to this case, she is not going to sit in on the mediation process. Counsel for the plaintiff responds that if the wife cannot sit in, the mediation is not going forward. The mediator is faced with mediating before the mediation can even begin.
Let’s focus on what is occurring. Counsel are wrapped up in a personal power struggle potentially at the expense of their client’s interests and the success of mediation process. Technically, the defense position is correct: non-parties do not have “right” to sit in on a mediation. But is this really wise?
In my experience it is not. If the husband wants his wife there, it is probably because he would not be comfortable making an important decision about resolving his case without her input and participation. Her absence is going to create a problem. She may not be a “party” but she is a decision maker. If the husband is left having to consult with his wife by telephone during the mediation, the process suffers.
But what about confidentiality? Is there anything to stop the wife, not a party to the litigation, from posting on social media about the pitiful amount offered by the insurance company or the disparaging comments made by defense counsel during the mediation? This is a valid concern. If this a judicially mandated mediation, the court may not even have jurisdiction to police a breach of confidentiality by a non-party.
There are several options that can allow a non-party to participate while still preserving confidentiality:
Ask the non-party to execute the mediation agreement “as to confidentiality”;
Allow the party requesting participation of a non-party to assume full responsibility for confidentiality by both participants;
Request that the non-party sit out of any joint sessions, while being allowed to join in any private caucuses; or
Include a stipulation in the mediation agreement that non-parties will be allowed to participate subject to the same confidentiality obligations as the parties and consenting to the court’s jurisdiction should there be a breach.
I have seen many situations where the non-party ended up being a voice of reason in a mediation and was key to resolution. While it is possible that non-party influencers will make a mediation more challenging, it is usually worth the effort to find a seat at the table for everyone who counts.