In a situation which happens more often than you might think, a party will show up at mediation with a friend, neighbor or relative who is not affiliated with the litigation or dispute. “Do you mind if my neighbor joins us? I could really use the moral support.” The question inevitably arises as to whether this is allowed, often when the other party voices concerns. There is very little authority on this subject. Pursuant to MEAC (formerly MQAP) Advisory Opinion, 99-004, however, three things seem clear. First, a nonparty can attend a mediation in order to assist a party provided that all other parties agree to it. Second, an objecting party should consider the fact that the failure to allow the nonparty to assist may hamper negotiations. Conversely, some thought should be given to the possibility that the “friend” may make things more difficult. Finally, all mediation participants, whether such participants are parties to the suit or not, are bound by the duty of confidentiality at mediation.
If there is a dispute regarding the participation of non-parties, the mediator can usually resolve this dispute as a first step toward reaching a settlement of the lawsuit. In the rare instances in which this dispute cannot be resolved, the mediator should probably continue the mediation and allow the parties to seek a court order allowing or disallowing the participation of a nonparty.
Rod Neuman is a Florida Supreme Court Certified Circuit Court Mediator, is also certified in the United States District Court for the Middle District of Florida, and offers these reflections based upon his experience in conducting mediations.