“Guess Who’s Coming To Dinner” was a groundbreaking movie focusing on an interracial love story. Who were the suburbanite parents expecting their daughter to bring home to dinner in this 1967 movie? Unmet expectations make for a great story, but they do not make for a great mediation. Actually, they can make for disaster and who we expect to attend the mediation is critical.
The US District Court for the Eastern District of Missouri spells out who must attend:
All named parties and their counsel are required to attend the ADR conference, participate in good faith, and possess the requisite settlement authority unless excused under paragraph (C)(2), below. The attendance requirement is satisfied by appearing in person or by video conference, as Ordered by the Court or authorized by the neutral. When appearing by video conference, persons must be visibly present in front of their camera with audio and video turned on so that audio and visual interaction with all parties can occur. Check out the full set of local rules: https://www.moed.uscourts.gov/sites/moed/files/CMECF_localrule.pdf.
Most other courts do not include such specificity, but I like this firm hand. My practice is to remind local lawyers of my duty to report back to the court that the parties attended and bargained in good faith. Done, but this is strange to out-of-town attorneys who are unfamiliar with the local rule. Lots of other jurisdictions are silent on who must attend the mediation. What usually happens in those jurisdictions is that the attorneys attend, but defer to their clients, especially insurance adjustors, who want to “be available” by phone but not attend in-person. That was pre-COVID, now with ZOOM, everyone is attending virtually, and some adjustors are also appearing virtually. But plenty do not want to or, are not permitted by their own management, to attend the full mediation.
With out-of-town attorneys/clients, in advance of the mediation I go out of my way to inform the attorney of the federal court requirement that their client (as the decision maker) attend the mediation. Later, I gently remind them of my reporting duty and this seems to work well.
The Eastern District is not afraid to enforce this rule. In Montoya v Sloan Valve, a 2021 decision, the court sanctioned a Defendant who sent an attorney to the virtual mediation with a client “available by phone.” The parties exchanged vastly different demands and offers, reached impasse and terminated the negotiations quickly. Plaintiff moved to sanction Defendant for this lack of attendance and the Court agreed. Defendant was ordered to pay $500 and to re-engage in a “good faith discussion and mediation lasting at least as long as the time they spent briefing the present motions.” I wonder which sanction was the most distasteful to the Defendant!
The take away from this decision, schedule your mediation with plenty of time in advance to ensure your client can attend. My own thought is that if your client wants to attend in any manner different from the other participants, inform your mediator and opponent in advance and procure their consent. If they object, be flexible and be ready to change. We may even need to mediate this precursor to the negotiations.