Mediation Minute

Guess Who’s Coming to Mediation? The Problem of Unwanted Attendees in Mediation

January 17, 2023

The rules governing attendance at mediation are not widely known, and there are some commonly held misunderstandings that require debunking. There are few things more disruptive than disputes over participation and authority. In the worst-case scenario, the parties have not communicated in advance, and an unwanted someone unexpectedly appears at the start of mediation to the consternation of the other side.

Invariably, the parties will appeal to the mediator to resolve the dispute over attendance. In Florida, a certified civil mediator has no authority to determine who may attend. State rules speak to persons with authority but not the actual guest list.

The best practice is for counsel to disclose in advance who is attending and their relationship to the parties and dispute. There is no rule requiring full disclosure of all attendees in advance, only the persons with “authority.”

Somewhat curiously, in the Middle District of Florida, the federal rules that permit the mediator to excuse a party’s attendance or to approve a “surrogate” in lieu of a named party. Those rules are inconsistent with ethical mandates and improperly place the mediator in the role of decision-maker.  Florida ethics rules tell us the mediator has no right to determine the guest list.

The law is simple: The parties must agree on the attendees and, if there is a dispute over who may attend, the party objecting to the attendee must file a motion to exclude them.

Florida law specifically contemplates and permits non-party attendees. The Florida Mediation Confidentiality and Privilege Act contemplates that non-party “participants” may attend mediation and if they do, they are bound by the same confidentiality rules that govern party litigants. See §44.403(2) (“Mediation participant” means a mediation party or a person who attends a mediation in person or by telephone, videoconference, or other electronic means).

What are the grounds for excluding a person from mediation? To this author’s knowledge, there is no controlling law or seminal case in Florida. The argument is similar to that made in arguing for a protective order. The party objecting needs to do more than assert the undesirable attendee is a “non-party” because this is no ground for relief.

The movant should assert:

  • articulable and specific harm to process if the individual participates, or
  • a concern for personal safety or mental duress, or
  • that participation by another will result in an unfair informational advantage affecting another pending matter or related personal or business interest, or
  • a concern that confidentiality will be breached and not easily redressed by sanctions (“cat out of the bag” disclosures)

In one case in which I participated, a plaintiff’s attorney with a similar case in another jurisdiction wanted to participate to see what happened during the mediation –- perhaps to get some sense of what money the defendant(s) might offer and what their talk points were during mediation. The defense objected, and the objection was overruled. Where there is a joint representation agreement in place, a party is entitled to the participation of more than one attorney. There is no requirement that an attorney be “of record” because mediations are not “on the record.”

On rare occasions, we see experts from both sides. They can be useful in discussing damages, construction repairs, or for resolving technical arguments unique to an industry.

Absent court order,  parties are entitled to non-lawyer consultants be they accountants, liability experts, financial planners or even pastors. Mediation contemplates self-determination and informed decision-making. A party may seek the advice of friend, relatives, clergy, or experts.

Ultimately, the court must resolve case-specific objections. Because self-determination is the backbone of mediation, motions to bar attendance of individuals are highly disfavored.

My engagement agreement encourages the parties to disclose all anticipated attendees well in advance so that any objections to participants may be resolved before the mediation session. Disputes over attendance on the day of mediation can ruin a mediation before it starts and are almost always avoidable if the parties communicate their intentions in advance.