Author/Source/Copyright: Jean-Marie Crahan, ADR Attorney, Mediator, Arbitrator, Special Master
In mediation that occurs as a part of the litigation process the attorneys for the parties and the parties themselves must appear. At times, however, resolution may be hard to reach if there is someone else upon whom an individual relies for support or decision making. These individuals are referred to as “shadow parties.”
Shadow parties can include people like a: spouse or significant other, parent, child, other relative, close friend, banker, accountant, psychiatrist, counselor, or experts. Carefully consider early on whether a shadow party will be helpful to having a successful mediation. You won’t know if there is a necessary shadow party unless you ask your client directly. Is there anyone else who they believe is necessary to make a final decision, or is there someone upon whom they typically rely to make or support major decisions. An elderly person, for example, may not feel comfortable attending a mediation without their adult child present. A business owner may need his accountant present to help him consider the tax implications of any potential settlement.
Upon identifying the shadow party, contact them to determine their willingness to participate. Determine whether you will incur fees for that person’s attendance. Meet the shadow party in person in order to gauge whether that person is truly someone who will help facilitate resolution rather than hinder it. Is the person naturally antagonistic or controlling? Will that party be able to participate in a “support” role?
Once you decide that a shadow party will be an asset in the mediation session, contact opposing counsel and the mediator to make sure that no one objects to the shadow party’s presence. Assuming all parties are approaching mediation in good faith, there should be no objection to including additional individuals who will be helpful in reaching resolution. However, it does add the necessity of accommodating another person’s calendar. You will also need to ensure that the shadow party is required to sign any confidentiality agreement that the parties have negotiated to ensure the confidential nature of the mediation.
As with your own client, be sure to educate the shadow party before the mediation session. Give them basic information concerning the mediation process, any information you have on the mediator’s style, and outline for them their role in the process.
Nothing kills the momentum in a mediation faster than a person saying they can’t make a final decision until they “consult” with someone else who is not available. Addressing the issue of shadow parties as part of your mediation preparation will increase your chances of a successful resolution to your dispute.
May 21, 2015