We are frequently asked by parties to a dispute, who can attend a mediation? Unfortunately, this can be an area of additional conflict between the parties, especially if not discussed and agreed in advance of the mediation. We think it is best practice to think about who is going to attend the mediation well in advance and to discuss it with the mediator and the other party or parties so that any objections can be dealt with before the day of the mediation.
In this article, we look at some of the issues to bear in mind when considering who is going to attend a mediation.
Who must attend a mediation?
It is useful to start with this question. It probably goes without saying that there are at least three critical people for any mediation to take place: the two parties in dispute and the mediator. However, where one (or both) of the parties is a large organisation, who should attend?
The starting point is that, whoever attends a mediation on behalf of a party, they must have authority to settle the dispute. It is incredibly frustrating (not to mention a waste of everyone's time) if the parties come to an agreement only for one to say, "I'll just have to run this past the boss/lawyer/wife."
Assuming both parties have authority to settle the dispute, then who else might attend the mediation? It is not always the case, especially in large organisations, that the person with authority to settle the dispute actually has any first-hand knowledge of what lead up to the dispute. In this situation, the person with authority might be accompanied by an employee or employees to help provide them with background information during the negotiations.
Who else can attend a mediation?
Other than the mediator and the parties (and their lawyers, if applicable), there are sometimes situations when other people, who are not parties to the dispute, might attend the mediation. The most common instances we see are support persons and interpreters.
Mediations can be emotionally-taxing and, in some cases, a party may want/need to have a support person with them. This can be the source of some friction, especially where the "support person" is known by both parties, or has an interest in the outcome of the dispute, as is often the case in disputes involving families.
It is not uncommon, in our experience in Supreme Court mediations, for support persons to not be allowed in the actual mediation; but are allowed to remain in a break-out room to provide personal and emotional support to a party in private sessions.
Some important considerations in relation to support persons are:
- A support person's role is simply to provide personal and emotional support.
- The support person should not take any part in the mediation itself.
- The support person must agree to keep everything they observe in the mediation confidential.
If the parties aren't all fluent in the same language, it may be necessary to appoint an interpreter.
Sometimes, to save the cost of engaging a professional interpreter, a friend or family member might offer to help out. This might be appropriate in some situations but it could also be the source of some friction for the same reason as discussed above in relation to support persons.
Some important considerations in relation to interpreters are:
- The interpreter should be qualified and independent.
- The interpreter must interpret what is said directly, without summarising or embellishing at all.
- The interpreter should be required to agree to keep everything they hear in the mediation confidential.
In some circumstances, it may be appropriate or necessary for a non-party to attend a mediation. However, to avoid additional conflict and potential delays, we recommend that these issues are considered and raised with the other party and the mediation as early as possible so that any issues can be ironed out well in advance.
Please don't hesitate to contact us if you have any queries about the mediation process or require some advice or assistance.