Mediation Message No. 31


Quite often, attorneys have no control over who shall be the party’s representative at mediation, especially if the litigant is an individual or the involved business is small. But when extenuating circumstances prevent the business owner from appearing or the entity is large enough to have multiple decision-makers, the attorney should take an active part in deciding who the representative shall be. The following two factors are considerations when making that choice:

The representative should be influential in the business. It is highly preferable, to keep the settlement process moving along, that the person in attendance have enough authority to make binding decisions. However, if that is not possible, the representative must be more than a mere spokesperson; he or she should be knowledgeable about the relevant circumstances and have the respect of the absent powers-that-be so that they will listen to his or her recommendation about what position to take.

The representative should be personable and well-mannered. In a joint caucus, the representative can “score points” with opposing counsel and his or her client by being courteous and, where appropriate, empathetic. Even if the parties never meet, the mediator will be influenced positively by any person who is respectful and engaging. This consideration, then, is no different from the thinking process that a lawyer should go through when deciding what witnesses to call at trial; certainly, knowledge of the facts is most important but, when all factors are equal, considerable weight should be given to the person who will best charm the jury.

Copyright, Michael D. Marcus, February 2006

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