The federal government has officially ended the COVID-19 emergency, but remote mediation remains. The practical benefits of remote mediation for both attorneys and their clients are obvious. On the other hand, the relaxed formality of remote mediations has created unexpected problems, including the appearance of uninvited guests, who can wreak havoc and endanger a productive mediation process. By working ahead, mediators and attorneys can prepare to keep these surprise attendees from ruining a mediation.

A recent case from the New York Supreme Court, Wohnberger v. Lucani, is indicative. During a court-ordered mediation, the plaintiff’s non-party business partner and fiancé appeared, attempting to act as the plaintiff’s representative. The purported representative’s conduct was apparently so egregious that the mediator was prompted to report to the ADR coordinator.

After reviewing the mediator’s email to the ADR office, the court dismissed the complaint “upon the plaintiff’s failure to comply with ADR rules.” The dismissal order described the representative’s conduct as “disturbing, rude and disrespectful.” Fortunately for plaintiff, the First Department reversed this order, holding that although the conduct was egregious, dismissal of the complaint was not warranted, in part because the plaintiff was not alerted that the circumstances of the failed mediation could lead to the dismissal of the complaint and was not given the opportunity to respond to the allegations in the mediator’s email.

Nonetheless, this case demonstrates how an uninvited participant can not only ruin a mediation but also lead to sanctions. Given that the presence of non-party participants is certainly more common in the age of remote mediations (especially if parties participate from their own home), mediators and attorneys should prepare ahead of time for this contingency.

Practical Tips To Handle the Unwanted Mediation Guest:

During the pandemic, all parties accepted a degree of informality as the price to pay to keep cases moving forward. On Zoom, parties may treat mediation as a less formal process, with people coming and going as they please. Now that the COVID-19 emergency has ended, and remote mediations are here to stay, mediators and attorneys must anticipate the unwanted mediation guest:

Have Counsel Communicate Who Is Appearing Ahead of Time:

Mediators should request that counsel identify who will be attending the mediation ahead of time (preferably in their mediation statements). By having counsel specify the attendees before the mediation, the mediator is ahead of the game should any surprise guests show up. Should the unwanted guest(s) appear and become disruptive, the mediator will have already preemptively addressed the issue, and the parties cannot act surprised if the non-party is asked to leave. During in-person mediations, it can be as simple as requesting that the non-party participant wait in another room. During remote mediations, this may be a more difficult conversation, especially if one of the parties is appearing from home. Asking non-parties to leave the room, especially if it is in their own home, can generate negative feelings toward the mediator, and the party may question the mediator’s partiality. If counsel is directed to identify appearances prior to the mediation, the mediator can try to flag any potential unwanted guests prior to any disruptions.

Communicate Expectations:

In conjunction with having counsel identify attendees ahead of time, mediators should also communicate expectations ahead of the mediation regarding the conduct of the attendees. Specifically, the mediator should stress that individuals not identified before the mediation, or anyone who makes a surprise appearance, may be asked to leave the room. By communicating expectations for participants, the parties cannot argue they have not been warned if someone is asked to leave for being disruptive or if the mediation is unproductive as a result.

Have Separate Conversations With Attorneys Only:

If the above tactics fail, and an unwanted guest appears to put the mediation in peril, the mediator should consider pulling the attorneys into a separate breakout room. A lawyer’s-only breakout room has two benefits. First, it will give the interloper a cooling off period and may signal the need for the person to calm down before the mediation breaks down entirely. Second, a lawyers-only breakout room may allow the attorneys to discuss practical matters related to the case, share possible valuations and see if there is any potential compromise that can be reached without the unwanted guest’s interference. Even if the mediation does not result in a resolution during the lawyers-only session, the parties can still make headway through a productive process.

Conclusion:

Generally speaking, no one wants a mediation to fail because of a participants’conduct, let alone a non-party participant. By having counsel identify expected appearances ahead of the mediation, communicating expectations of all attendees and segregating any disruptive parties from the process, mediators can preemptively address the issue of the unwanted guest and lessen or eliminate one obstacle to a successful mediation.

Darren Rumack is an attorney at The Klein & Cardali Law Group, PLLC, which represents employees and employers in all areas of employment discrimination, wage and hour law and workers’ compensation. He is also an active employment law mediator in both the S.D.N.Y. and E.D.N.Y.

This article is also available on The New York State Bar Association website:
Remote Mediations and Unwanted Guests