At times, the parties to an upcoming mediation seek to waive the requirement of some to attend mediation, when a better question might be, “who else should be invited?”
While the Rules specify who must attend mediation, the rules do not prevent the parties from having additional persons attend if the attendance is met with the approval of the mediator.
More consideration should be given to expanding, rather than reducing the guest list for a number of reasons:
1. If an individually named party is married, their spouse may not be a party, but may have considerable bearing on the outcome of mediation. It is frequently preferable to have them engaged in the process, rather than leaving the litigant fearful of explaining the outcome when they get home.
2. In some cases, having a key expert present (not for cross examination, etc., but to provide information to a party during the course of the negotiations), may better allow the parties to sift through, address and respond to issues that might otherwise have stalled negotiations.
3. Where insurance coverage is an issue, having coverage counsel involved and engaged may allow the parties to sort through the insurance implications in order to allow the merits to be best addressed.
In summary, it is not always preferable to have a large group at mediation, but rather than reflexively seeking to minimize attendance, thought to purposefully expanding the party may enhance the chance of a successful outcome.
