Who will be at a mediation session can be a source of uncertainty and distress at a time when a participant who is preparing for mediation – be it family mediation or commercial mediation – has more than enough on his or her plate already. The rules are very different depending on whether it is family mediation or commercial mediation, and this article aims to outline the approach that Hampshire Mediation seeks to take.
Civil and Commercial Mediation
The attendance is third parties in civil and commercial mediations is very common indeed, but it can also lead to confusion and to argument between the participants before the mediation has even begun. Many people choose to be accompanied by a family friend, who can be invaluable in providing moral support, in talking over options, and in providing someone to try out new ideas on. At Hampshire Mediation we have consistently found that the presence of such a person can be enormously helpful during the mediation session. Others choose to be accompanied by their solicitor or barrister, and again the presence of such an individual can be enormously helpful in reaching agreement, particularly when the settlement agreement is being drawn up.
What can cause difficulty, however, is when one party brings someone along on the day, without notice to the other party or to the mediator. This can leave the party who is on their own feeling at a disadvantage, particularly if the third party is a legal professional. That in turn can impede the progress of the mediation or, in extreme cases, cause the lonely party to withdraw altogether.
For that reason we at Hampshire Mediation stipulate that anyone who wants to bring someone along with them must give us notice, and that we will tell the other participant in the mediation who is going to be attending to allow them to think about whether or not they would like to be accompanied as well. We seek to have this attendance by consensus, thereby allowing us to harness the benefit of having the third party present, while avoiding the drawbacks of one party feeling ambushed.
The situation in family mediation is rather different. At Hampshire Mediation we are governed by the Code of Practice for Family Mediators which is published and maintained by the Family Mediation Council. Section 6 of the Code discusses, amongst other things, who may be present during mediation sessions.
If there are communications issues connected with the mediation then it is perfectly acceptable for a translator to be present, but he or she must be a professionally qualified and registered translator and not, for example, a family member.
If there is a particular technical aspect to the mediation and all participants agree that professional assistance would be helpful, a professional such as an accountant, an actuary or an independent financial advisor may be invited to give their professional opinion where it is needed. Such a professional will typically be jointly instructed and neutral in the dispute.
Occasionally, and if the mediator and both participants agree that it is necessary, the mediation may take place in the presence of the participants’ solicitors. However, in practice this is very rare indeed.
If there is another party who has a legal or beneficial interest in the issues being discussed, they may attend with the permission of the participants and the mediator. This might be the co-owner of a property or an individual having a beneficial interest in something which is held in trust.
At Hampshire Mediation we also encourage participants to bring a friend or family member with them to their Mediation Information and Assessment Meetings (MIAMs), but not to joint mediation sessions.
All cases are different, and we seek to address each on its particular merits. If you would like to discuss whether or not a particular individual can attend a mediation session in which you are taking part, contact your mediator and he or she will be happy to discuss it.