Consenting to Negotiate Against an Empty Chair Is Never a Good Idea

As a mediator, I am sometimes advised by counsel that its adversary has consented to its client representative participating remotely by phone or video. Negotiating against an empty chair, i.e., a party not physically present, is never a good idea. The remote party is not sufficiently invested in the mediation process nor as susceptible to the influence of the mediator as the party that is present. The party that is present is at a huge disadvantage, and the mediation is less likely to be successful. So don’t consent to negotiate against an empty chair. Insist that a party representative with real settlement authority be physically present. (This is, of course, not an issue where mediation is by video, in which case there is no excuse for failure of a competent party representative to participate.)


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Bankruptcy Mediation is a treatise published by the American Bankruptcy Institute