Are You Ready to Mediate?: Part 5 - Bring the Right Person to The Table

There is nothing more frustrating and deflating than proceeding through a mediation only to find at crunch time that a party that had proclaimed at the outset that they had authority to settle either has very limited authority or no real authority to bind that party (in other words, any decision that they make requires the input and approval of a superior).  

As counsel, it is your job to ensure that your client or client representative at mediation has a reasonable range of settlement authority.  A failure to adequately address this issue brings your integrity and credibility into question and may even constitute an act of bad faith under the Law Society of Upper Canada’s Rules of Professional Conduct. At the very least, the absence of settlement authority results in a wasted mediation opportunity.

I appreciate that client representatives may have limits on their authority and that during the course of mediation further authority may need to be obtained (depending on how the mediation unfolds) from the ultimate decision-maker. This is not ideal, as it requires bringing someone into the process (generally, by phone) who has not been privy to the discussions that have taken place during the mediation. Their views were likely formed prior to the mediation, so getting that person to see things through the lens of the mediation process conducted over several hours can be challenging. However, this challenge can be alleviated somewhat if counsel recognizes in advance of the mediation session the limits of authority of the person scheduled to attend the mediation and engages the ultimate decision-maker in a fulsome discussion prior to the mediation regarding the possible settlement range.  If a phone call then has to be made during the course of the mediation, the ultimate decision-maker should be well-informed and able to jump into the decision-making discussion.

When preparing for mediation, determine who the ultimate decision-maker is and arrange to have that person attend the mediation in-person.  If that individual is not available in-person, ensure you’ve fully canvassed
settlement authority with them in advance of the mediation and confirm that the person designated to attend has a reasonable range of settlement authority. Finally, as a back-up, make arrangements to have the ultimate decision-maker available by phone throughout the mediation session.