**This article was published in the Spring 2024 Edition of The Family Law Review. A publication of the Family Law Section of the State Bar of Georgia.
By Christina L. Scott, J.D.
When I first began mediating many moons ago, I will never forget the time a very large and intimidating man showed up as a “support person” for a wife in a divorce case. I remember asking him who he was and how he was affiliated with the case. He said, “I am here to make sure he (the husband) knows that we intend to have our interests served.” I was a baby mediator at the time, but my gut instinct was to keep him as far away from the mediation as possible. It was clear that the wife brought him there simply to intimidate and agitate the other party. I politely told the man that he would not be allowed in the session. Reluctantly, he proceeded to wait in the lobby where he sat on the edge of his chair with an intimidating posture. After this incident, I asked another seasoned colleague about their practice concerning third parties who show up in such a manner. They exclaimed, “You should never allow any random persons to participate in any mediation.” By “random,” my colleagues meant, no girlfriends, no boyfriends, no baby mammas, parents, upset brothers or sisters, or any other persons not named on the lawsuit. I took this as good advice especially since I was not aware of any policies or statutes that gave such third parties any explicit rights to participate in mediation. Since my guiding principle is to always follow the rules of confidentiality, the presence of any third party represented a potential breach of my principle.
Consent to Third Party Participation is Required
As the years went by, I found myself allowing certain third parties to appear in my mediations if I believed at the onset that their intentions were pure. I always had them sign the mediation guidelines so that they would also be bound by the same rules as the parties. In addition to signing the guidelines, my practice was to always secure consent and agreement by the opposing side before allowing any third parties to participate, even if only in caucus. My core belief for doing this is founded in the foundational tenant of mediation which is the participants’ agreement to absolutely all aspects of the mediation. If I didn’t have consent and agreement from all parties, I would ask the third party to leave. I would also re-affirm with the party to the dispute that if they really wanted a chance to settle the case, they would need to ask their third party to respectfully “kick rocks”. In other cases, even if I had consent from the parties and it turned out that the third party was not helpful to the process, I would personally ask them to leave.
Virtual Mediation Requires Additional Safeguards
Then, many years later, along came the COVID-19 pandemic which forced all of us into a paralyzing virtual world. Virtual mediation would now impair my ability to control who was in the room. Being stuck behind a camera, I realized that I had to be vigilant and discerning of the virtual environment. During my opening I always stress that mediation is a private meeting between the parties and not a public one, therefore no other parties should be present whether they are in person, virtually, or by listening device unless there is consent by all parties. I quickly learned that mediation participants heard my statements but didn’t always comply with what I was conveying. During the 2020 COVID year, I had a virtual divorce case in which a difficult wife had her mother in the room but off-camera despite my clear statements that third parties were not allowed. While I was speaking to the wife, I could hear someone in the background and even saw their shadow on the camera! I asked the wife if someone else was in the room and she admitted it was her mother. Her attorney quickly spoke up and reiterated that she (the wife) should not have another person in the room that we could not see. The wife asked her mother to leave and announced to us that she was no longer in the room. It then made sense to me why the wife was being so difficult and seemingly unreasonable.
Situations like these can frustrate and potentially derail the mediation, However, in some cases the presence of a third party may be helpful. The question then becomes, should unvested third parties be allowed to attend mediation and if so, how do you determine who is allowed to stay and who is asked to leave.
Third Party Participation is Necessary or Essential in Some Instances
Indeed, situations in which the opposing party is an unrepresented person may be handled differently because GUMA (Georgia Uniform Mediation Act) gives them the opportunity to have a support person to accompany them according to Section § 9-17-9.
Many times, there are cases where other stakeholders are involved, such as stepparents or new spouses. In cases like these, the terms of the parenting plan, for instance, could be crucial to their household and the client might need to discuss the matter with the new wife or husband. In these situations, the third party may be essential, but not always. If you know that the client has re-married, ask them candidly, “Can you settle the case without your new spouse?” If the answer is “no”, then it is a good idea to notify the mediator so that there are no surprises. On the other hand, if the new spouse just happens to be the person that the opposing party believes destroyed the marriage, then you may want to have a much deeper conversation with your client about keeping them out of the mediation process.
Of course, there are other instances in which third persons are essential such as in cases of mental incapacity or disability. These parties often need the support of the person with Power of Attorney over their affairs to participate in the mediation. I’ve had other mediations where one party was a very young new dad or mom, and they needed the help of a trusted parent to guide them through the nuances of a parenting plan. In other cases, I have found that Guardian ad ileums (GALs), financial experts, and accountants are typically essential parties that are necessary to moving cases toward settlement. GALs are typically ordered to attend mediation, but parties may decide to have certain conversations outside of the guardian’s presence. Financial experts are often essential to the party that retained them and are privy to caucus discussions, so having them sign the mediation guidelines is a must.
Retained Counsel May Assist in Evaluating Third Party Participation Issues
Now, situations in which represented parties decide to bring random and unvested third persons to the mediation, often require a different level of scrutiny. Retained counsel may be helpful to the mediator in avoiding this by having a conversation with clients prior to the mediation day. Counsel may discuss these factors with their clients:
1. Will the presence of a third party be helpful in moving toward settlement?
2. Is the third party essential to settlement?
The helpfulness of the third party is key. Although it may sometimes feel like it, mediation is not a circus and therefore is not to be treated as a source of amusement or entertainment. As a mediator, I try to keep the unnecessary quibbling to the lowest level possible. Simply put, if the third party stirs up the quibbling or enflames the participant, they are not helpful. Representing attorneys are in the best position to find out from their clients the posture of the third party. Are they coming to instigate or help? Instigators can divert the focus in mediation and lead everyone down the wrong path. My focus as a mediator is to move everyone forward toward resolution if that is in fact what they want and not waste the participants’ time and resources in managing a disruptive third person.
Family law, by nature, is an emotionally charged arena which requires a bit of skill and finesse, and getting parties to settle in this type of environment can be challenging enough. Eliminating unnecessary roadblocks caused by some third parties is paramount to increasing the likelihood of settlement. And as attorneys, understanding the potential presence and intentions of third parties might be the deciding factor between a case settling at mediation or one that is likely to end up in a final trial.
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