Mediation success starts with having the right people at the table

Much of my practice comprises the mediation of civil disputes where a half-half or full-day is set aside in the hopes of achieving a complete resolution of the dispute on the day. In a career with over 1500 mediations, I've conducted many of these sessions and seen a lot.

Part of running a successful mediation practice is a having a well-developed sense of agility.

You may not be able to predict every unpredictable situation, but you can certainly work around most hurdles as they arise.

There is one obstacle that can threaten to derail a mediation right off its tracks: having the wrong people at the table. This can be on either side of the dispute and in any type of file (employment, insurance, shareholder dispute, you name it).

I was recently chatting with a friend about this challenge. He negotiates for a living in the business world, and lives by the following motto: "Don't take no from someone who has no authority to say yes."

As a mediator, I see it as my job to do my utmost to ensure those words cannot be uttered when I'm at work.

But l've seen the issue arise a time or two, and it always presents a challenge.

Sometimes it's a representative for an employer coming to the table for the defence. They have poor knowledge of the file, and they've been sent to simply 'write a cheque...' If a reasonable settlement exceeds their authority, it can be challenging to get further instructions from someone higher in the hierarchy who has not been privy to the magical ebb and flow of discussion during the mediation.

If you think it only happens on the defence side, think again. Mediation can understandably be intimidating for plaintiffs, especially if it's their first encounter with legal proceedings, although I do my best to establish a calming environment. There have been times where I have seen a plaintiff agree to a settlement in principle, only to get cold feet before signing minutes of settlement and wanting time to sleep on it.

In one instance, I was working with a plaintiff who was prepared to agree to a settlement but, in the eleventh hour, declared before me and her lawyer in caucus that she wanted to have her husband review the defendant's offer before signing off. In a funny twist, he was only a short drive away, so we paused the mediation until he could arrive and fully review the proposed settlement with his wife and counsel. Ultimately, the plaintiff signed off.

Wherever possible, I try to be proactive to ensure decision-making authority has been addressed before we arrive at mediation. To do so, I've built in a pre-mediation conference call (PMC) as part of my mediation process.

The PMC

The PMC provides an opportunity for the mediator to meet with counsel in advance of the mediation (without the parties present) to discuss mediation logistics and process to ensure the pieces are in place for a successful mediation session. (including having all decision-makers at the table or, as a back-up, available by phone).

In an ideal mediation scenario with counsel, the lawyers work collaboratively to bring their clients closer together with a view to forging a reasonable settlement. This means that the PMC is their chance to speak about any of the issues that might hinder that process, including an overly emotional or challenging client, or one who is extremely hesitant about the mediation process, and any key documents that may have been overlooked.

It's also an opportunity for me to ensure that the right people are coming to mediation. Has the plaintiff been well-briefed about the purpose of the day, and are they ready to proceed and make decisions? Is the defendant sending the right person - one who can speak to the issues, and has authority to settle as needed (and, if further authority is required, is back-up available by phone)?

On the defence side, it may be more than one representative that should be consulted in the process. In a recent file, during the PMC, it became clear that a corporate defendant faced significant exposure, and their insurer may need to be present at the mediation. As a result of that realization, we postponed the mediation so the insurer could review the file and assess their client's exposure. Delaying the mediation in that case may have seemed unconventional, but it was critical to making the most of the mediation opportunity. When we did get together to mediate, the insurer's presence was instrumental in bringing about a timely resolution; it is unlikely that a settlement would have been reached at mediation without their involvement.

Why authority is so important

It's clear what can happen when people without authority come to the table, but what is authority anyway? Is it just the power to 'cut a cheque,' or to sign on an entity's behalf? Those are important elements, but there is more to it.

An early mediation presents an opportunity to resolve a dispute before it is dragged further through the litigation process, with its significant attendant costs and delays.

For that reason, it's important that we not take the day lightly. Each of us - the parties, their counsel, and the mediator - have set the time aside to put our heads together and make best efforts to resolve the dispute. That means everyone is willing to roll up their proverbial sleeves and get to work. Imagine having one of those core individuals effectively unable to do that work, and you understand the perils of having a party without proper authority.

Authority is often used in the financial sense and an absence of financial flexibility can lead to a stalemate in the mediation process. For example, an employer sends a manager to a wrongful dismissal mediation with strict instructions to pay no more than $45,000. If the employee is willing to settle for $48,000, but the manager has no room to move and no ability to consult a superior, we may arrive at an unfortunate stalemate.

Beyond that, authority can extend well past a number, to the terms of a deal itself. Both parties need to clearly understand their rights and obligations upon settlement, which we discuss in the PMC. For example, one client I deal with regularly has a two-tiered approval process; any settlement agreed to at mediation must be reviewed and approved by a special committee at a meeting that takes place often weeks after the completed mediation. I ensure that this dynamic is discussed at the PMC so that both plaintiff and their counsel enter mediation fully informed.

Final Thoughts

At its best, mediation is an effective and efficient way to solve disputes, but it requires having the right people at the table. When they are there, the process runs smoothly. When they're not, it can lead to challenges and frustration.