A mediation is unlikely to be successful unless those with the right and the power to make a settlement are present. This means that the plaintiff and the defendant must be present. If either party is an entity, an authorised representative must be present.
Sometimes, if the party is a large entity such as an insurer or public body, there may be several different people who have to ‘sign off’ on any deal. It is vitally important that such persons confer in advance of the mediation to give their representative substantial discretion to make a deal and the ability, if needed, to contact other decision makers at the time of the mediation if different authority is needed.
Unless the client has confidence in the advice of their legal representative, the concessions necessary to compromise and reach settlement may be impossible to achieve. This may mean that counsel with experience of what may happen in the courtroom should represent the client at mediation. Depending on the client, the issues and the value of the case, a solicitor and/or counsel might both be present.
In the case of an unrepresented lay client, it is often helpful if they bring with them someone they trust who can act as either a sounding board for their decisions or the provider of emotional support or both. Making decisions is not easy and a lay client benefits from the security of both kinds of support.
