I recently read an article explaining ways to increase the likelihood of success at mediation. The article presented the advice in the negative, that is, mistakes to avoid. One of the key points was: Do not leave the decision-makers at home. I reflected on my own experiences and am providing commentary on this advice, but from a positive perspective.
Lawyers can easily negotiate in real-time via teleconference, email and even Skype. These channels can likewise involve a mediator. However, tangible yet critical aspects are missing from such methods - personality and emotion to name a few. Although mediating in person restores some of those characteristics, many remain absent if the real parties in interest are not present.
To a good lawyer, every case is important. But to the client, it is often a major life event or a critical turning point for a business. It is not unusual for decision-makers to "call in" to the mediation to make decisions. The rationale behind such arrangement relies primarily on the purported notion of efficiency.
But such a view is short-sited. If the real party in interest is absent, it lowers the sense of urgency and largely removes the personal and emotional elements of the case. As well, absence of a party communicates the message that at least one may not be taking the mediation as seriously as the other. If the goal of the mediation is truly to work towards a mutually beneficial compromise, then the decision-makers must be present and willing to participate.
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