The answer to the first question is simple. Parties in most instances must attend a mediation. Court rules and mediation providers often require it, and it is certainly a best practice. Most mediators would not go forward without the parties in attendance.
For their part, the client may be wondering why it is necessary to be there. After all, they have an attorney. In fact, there are many different reasons.
At a minimum, it is helpful for the client to not only hear what his attorney says, but also to hear what the other party and his attorney says. Oftentimes a client will convey his position to his attorney, but has never heard the other side’s argument. This is essential to understanding the other side’s needs and interests which, as we’ve discussed in previous articles, is invaluable in settling a case. Also, it is oftentimes helpful for the parties to see each other and have the chance to speak in a way that may be cathartic and serve as the ice-breaker, which can be a helpful first step in moving towards a resolution.
Another reason for a client to attend is far more practical and easy to understand: Someone has to make a decision. Without the decision maker present, the case cannot be settled. This often can be complicated if one of the parties is an entity; even if the entity sends someone who has authority to settle—up to a point. If the discussions lead to the possibility of a resolution beyond the representative’s authority, the absence (or unavailability) of the actual decision maker may present a roadblock to settlement at the most important time.
“Why should I speak if my attorney is hired to speak for me?”
The response to the second question is a little more nuanced. If the mediator begins the mediation with a joint session, meaning a session in which all of the parties and all of the attorneys meet together with the mediator, the parties will have the opportunity to speak. So, should you speak when invited to do so by the mediator, or should you rely on your attorney?
The answer depends on many factors: Is the client someone who can confidently and accurately explain his position? If not, he may not want to speak. However, if the client is comfortable and can explain his position, speaking will afford him the opportunity to demonstrate his knowledge of the facts and commitment to pursuing a just resolution; things that are important and helpful to convey to the other side.
After a joint session—and, of course, if there isn’t one—the parties will meet separately with the mediator.
Should the client speak in caucus?
In most instances the mediator would like to hear directly from the party. This is often helpful in establishing a rapport between the party and the mediator, which will better enable the mediator to get a true understanding as to what the issues are, the party’s interests and needs, and any roadblocks that may exist toward settlement.
Moreover, since the caucus is confidential, the client who is not very comfortable speaking in the presence of his adversary and may be concerned that by doing so, he could hurt his case, should feel no such inhibition. Even if he misspeaks, that cannot be conveyed to the other side and his lawyer is present to correct him. The more open give and take of a caucus, as compared with the more constrained interchanges of a joint session, is a reason why, in most mediations, more time is spent in caucus than in the joint session. Since it is where the work gets done, and, after all, it’s your case, you should be fully engaged in the process that may lead to a resolution.
The extent of the client’s active participation in the give and take of the mediation is something to be worked out carefully before the mediation.