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At the start of a mediation session, the wise mediator will confirm that the participants are authorised to take decisions. The reason is obvious. As the aim of mediation is to achieve an agreed solution, decision-makers need to be present, or (second best) readily contactable.
However, life is not that simple. Maybe a company representative has been told that he can settle for up to £50,000, but anything more will require him / her to revert back to colleagues for authority to go higher. Professional indemnity and legal expenses insurers cap their representatives’ authority.
The need for further authority may only become apparent at 8 pm, when the momentum of the negotiations is pointing towards a higher settlement figure. Then finding the next-stage decision-maker can be tricky – if it is already 10 pm in Moscow and the relevant person has no intention of being dragged out of the Bolshoi (a true story!).
Sometimes the next-stage decision-maker has not been kept in the loop, and refuses to be bounced on limited information into his / her subordinate’s wish to settle – ‘Make an appointment to see me tomorrow … ‘
A parent attending a mediation may begin anxiously to look at their mobile at 5.30 pm. Then comes the explanation – ‘Sorry, I must be going now, as you know what the traffic’s like and the nursery closes at 6 pm’.
Sometimes, people overstate their authority – ‘My wife’s at work today, but she’s given me full authority to settle’. Too good to be true, when at 7 pm the husband says – ‘That looks OK to me, but Joyce will kill me if I don’t run it past her over supper tonight.’
Sometimes, getting an agreement in principle at the mediation is the best that can be done, with any final approvals to be put in place by an agreed date, or else the deal will be off the table.
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