I am often asked who should come to mediation. The answer is easy - it depends. While we, as lawyers, frequently give that answer to our clients (because it is so often true), I hope the attorneys to whom I say that don’t take it as flippant. Even if they initially do, they quickly realize, as we explore the question and its answer, that there is no hard and fast, automatic answer that applies to every mediation.
The question of who should attend a mediation should be addressed before the mediation sessions begin. This sounds obvious, but I believe that people often make assumptions about who “needs” to be there and who “should” be there without much real thought. And these assumptions are often wrong.
Of course, if the mediation is court-ordered, the court’s order may address who is to be there and whether they must be physically present or available electronically or virtually.
The Alabama Civil Court Mediation Rules provide some guidelines for attendance at a mediation governed by those rules (mediations of matters in pending civil actions or mediations where the parties agree that these rules apply).
Any party not represented by an attorney may be assisted by persons of his or her choice in the mediation. Each party, or that party’s representative, must be prepared to discuss during mediation sessions the issues submitted to mediation and, unless otherwise expressly agreed upon by the parties or ordered by the court before the first mediation session, someone with authority to settle those issues must be present at the mediation session or reasonably available to authorize settlement during the mediation session.
Rule 10 provides:
Mediation sessions are private. An alleged victim of domestic or family violence may have in attendance at mediation a supportive person of his or her choice. In all other cases, persons other than the parties and their representatives may attend mediation sessions only with the permission of the parties and with the consent of the mediator.
Unless there is a court order that provides otherwise, I usually focus on these rules and discuss this issue with the attorneys prior to the mediation.
There may be people who want to be at the mediation but whose attendance will not further the goal of reaching a resolution of the dispute. In those cases, Rule 10 often provides an easy out – if they are not a party or a representative they cannot be there unless the mediator and the other party agree. If they aren’t conducive to productive settlement discussions, then who would want them there? It’s easy to say no. And it is a lot easier to say no before they arrive than to have them leave once there.
Notice that the rules do not require a party to be there, so long as someone with authority to settle the issues is present or reasonably available to authorize settlement during the mediation session.
But someone must be present and prepared to discuss the issues submitted to mediation during the mediation sessions. This can be varied by court order and by the parties’ agreement.