Mediation thoughts: “If you aren’t at the table, you are probably on the menu.”

Rich McLeodADR

Often, parties who are somewhat peripheral to a dispute in litigation learn of a mediation among the actual parties. They may be invited to it or just clued in by serendipity. However it happens, they should be considering the question, “Should we attend?”

My cavalier but still serious answer is: “Yes. Always.”

Perhaps you are an insurer who has disclaimed coverage, or a potential third-party defendant or indemnitor. You are pretty confident that you have no exposure to the claims being mediated – either to the claimant or the respondent. So why incur the expense of being at a mediation, you might ask.

But you know what?  When serious disputes are being resolved, smart lawyers and motivated parties can be very resourceful. And when mediation agreements are struck, the phrasing of what is settled and why and how the consideration is allocated can affect what rights remain afterward.

Being at the mediation – even if you think your dog is safely in the kennel and not in the fight – can provide at best an oar in the water about how the case gets settled, and at worst at least information about what happened behind the scenes rather than just a view of the curtain and not of the wizard.

A side benefit: when parties skip mediations, those who attended often later attack the non-attendees for being uncaring and having lost their vote by not showing up at the polls. So even if they couldn’t have done anything if they were there, they may be in an even worse pickle when protesting the outcome later in a different forum.