The drawback of preventing non-parties from attending mediations

ADR Rule 5(d) states that “ADR [Alternative Dispute Resolution] conferences are private. Other persons may attend only with the permission of the parties, their attorneys and the mediator.” In family court mediations, parties will often want their non-party family members to attend the mediation. Typically, this will be step-parents [for custody mediations] or parents [for divorce mediations] or either/both [for support modification mediations].

ADR Rule 5 clearly allows the other party the ability to prevent these third parties from attending the mediation. Often they will chose to do so. Typically this is because the other party does not get along with that party’s new spouse or [ex] in-laws. The refusal can be utilized as a method of exercising control over the other party.

However, what is personally satisfying is almost always counterproductive. No matter how disruptive such third parties can be to the settlement process, anyone who has “veto power” over an agreement is better off being part of the mediation process. To prevent such veto-holding non-parties from attending the mediation can, at best, lengthen the mediation, and can, at worst, cause a mediated agreement to fall apart before the court approves it.

In any mediation that results in an agreement both parties are almost certainly going to be giving up on goals that they had hoped to achieve. In fact, part of the mediator’s role is to help parties determine which goals they might give up in order that they can be certain of obtaining other goals. The mediator “sells” the parties on the idea that achieving the goals gained through a mediated agreement is better than going through the stress, expense, and uncertainty of letting a family court judge decide these issues. The mediator also helps these parties understand why giving up on certain goals is in their best interests. Ultimately the mediator needs both parties to accept that the balance of what they achieve and what they give up is preferable to the risk of trial.

However the folks who are unable to participate in the mediation won’t necessarily understand this balancing. Instead they will review the mediated agreement through the lens of what was given-up, as opposed to what was gained. They are likely to discourage the litigant from going through with the agreement. In the best case scenario, the party will be continuously phoning the “veto holding” relative during the mediation to get the non-party’s input at each step of the negotiation. This will lengthen the mediation process without providing any real benefit. In the worst case scenario, the non-party will talk the party out of executing the mediated agreement or talk that party into repudiating the agreement if it has already been executed.

Though the desire to keep non-parties out of the mediation process is understandable–especially when the other party dislikes the non-party–anyone who will ultimately have veto power over an agreement should participate in the mediation. Mediated agreements are most likely to result in a final resolution of the case if all veto-holding relatives buy-in to the mediator’s suggestions.

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  • As a mediator, I encourage the presence of parents, paramours, and others who will undermine and sabotage any settlement or agreement in which they do not participate and thus do not understand the reasons it was reached. Frequently significant others are quite helpful in reaching settlements and ending conflict. This is particularly true where a parent or significant other is footing the bill for the litigation. Thanks for the post.

  • Greg,

    Do you believe the confidentiality privilege of mediation extends to third parties? In other words, if a third party attends mediation can he or she be compelled to testify about the details discussed during mediation?

    • I do and the issue has never come up. ADR Rule 8(a) makes such attendees subject to the confidentiality requirement and also requires them to sign the agreement to mediate.

  • I fully concur with your reasoning.

  • Todd Manley

    Greg,

    Excellent blog and reasoning. This comes up routinely in my mediation practice, and I strongly encourage the attendance of all “decision-makers”.

    One further comment is that the Rule also appears to extend to Guardians. I have had Guardians insist on appearing when one/both parties do not want the appearance/cost of the Guardian.

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