By Kent B. Scott and Cody W. Wilson
Who Should I Bring to the Mediation?
Client representatives. More is not better. The attorney and client should bring one or two employees who know the facts of the dispute. The problem is that often the employees most involved in a dispute have a vested interest in protecting their personal turf. Counsel and the client may have to decide how to handle an employee who was intimately involved in the dispute but has an agenda that doesn’t fit in with the client’s objectives for resolution. For example, this employee may be more interested in shifting responsibility for what happened to someone else.
Experts. The attorney and client also need to decide whether an expert will be needed. Experts are usually needed only for highly technical or scientific disputes. They can be involved before or during the mediation or both. An expert can be retained before the mediation to help prepare the client and counsel for the mediation session.
In certain technical disputes, the expert can also be retained to participate at the mediation. For example, the expert could deliver part or all of the client’s opening statement at the joint session. In addition, or alternatively, the expert could participate in private caucuses with the mediator in order to explain technical or scientific matters.
Sometimes bringing an expert to the mediation can complicate matters by adding another layer of advocacy and taking the focus off finding potential solutions. Counsel should know whether the case requires an expert and the precise role the expert should play. The expert should be clearly advised of the limits of his or her role prior to the mediation. The client, meanwhile, should be aware that retaining an expert will raise the cost of mediation.
Decision maker. It is essential to bring the client’s decision maker to the mediation. If there is more than one, they all should attend. If the client is insured, the adjuster must attend and have a supervisor available by phone in case additional settlement authority is needed. If the client is a public entity, a representative of the board or executive committee with valid authority should attend.
Without a decision maker present for both sides, the potential for settlement drops dramatically. If the decision maker is not able to attend in person, that creates difficulties, but the case could still settle if the decision maker is available by phone. Take this mediation involving a designbuilder who was terminated from a renovation project by a school district. It made a claim for the value of unpaid work, termination costs and lost profits on the remaining work. The designbuilder and members of the school board attended the mediation. They reached a settlement, but it could not be implemented without the superintendent’s approval. But he did not attend because he was on vacation. He was located and the mediator conducted several caucus sessions via telephone with him and the members of the school board. As a result, the conflict was settled.
In every mediation, counsel and the client’s decision maker should be fully prepared for the mediation and know the client’s strategy and objectives for the mediation.
Part VIII of this series will discuss the day of the mediation. Stay tuned.
[Ed. note: the contents of this post were first published on a different form in the May/July 2008 Edition of the AAA Dispute Resolution Journal.]
Kent B. Scott is a shareholder in the law firm of Babcock Scott & Babcock in Salt Lake City whose practice focuses on the prevention and resolution of construction disputes. As a mediator and arbitrator, Mr. Scott currently serves on the AAA’s panel of mediators and the AAA’s Large Complex Construction Case Panel. He also serves on the arbitration and mediation panels for the U.S. District Courts (District of Utah), State District Court (Utah) and Utah Dispute Resolution. Mr. Scott is a founding member of the Dispute Resolution Section of the Utah Bar and a Trustee for the Utah Council on Conflict Resolution.
Cody W. Wilson is an associate in the law firm of Babcock Scott & Babcock, concentrating his practice in the area of construction law, is licensed in all courts in the State of Utah, the U.S. District Court of Utah, the 10th Circuit Court of Appeals, the U.S. Court of Federal Claims and is a member of the ABA Forum on the Construction Industry. They can be reached at email@example.com and firstname.lastname@example.org.