Jonathan E. Pearl
Co-Mediation: Is it a case of "....too many cooks"?
I have only done one co-mediation. It was arranged in a hurry when I was volunteering for the Free Mediation Project at the Royal Courts of Justice. I only had a few minutes to confer with my co-mediator before we started. It went fine. The pluses were obvious.
- Diversity - I am a middle-aged white male and my co-mediator was a young-ish Asian woman. The parties in front of us were, respectively, a younger white male and woman lawyer who was of African origin. The meld was a complete fluke, but I am sure that it contributed to all parties feeling that they were culturally “included” in the process.
- 4-Eyes better than 2 - In the places where my co-mediator was speaking I was carefully observing the parties and their body-language. And my co-mediator did the same when I was talking. This wasn’t pre-arranged, but we did confer during the breaks on what we had each observed, and that was very informative. We were both accredited and trained by different organisations and a couple of process / procedural differences came up. But nothing that we couldn’t handle on the fly.
- Support might be needed - My co-mediator wanted to ‘open’ because she was relatively inexperienced and wanted to test her water-wings. I was fine with this. She made a big point about the process being non-binding but failed to also state that “if the parties reach a compromise that will be written up in a legally binding agreement”. When there was a natural break I corrected this – hopefully without causing any embarrassment to my co-mediator. Later she corrected me on something that I could have done better – for which I am grateful. The two of us were better able to deal with the situation than either of us alone.
- Different skills - My co-mediator had a totally different professional background to mine (I discovered later) but this didn’t really come into play – although it could have been very useful.
This mediation didn’t settle, but I very much doubt that this was because it was co-mediated.
From a mediator’s perspective co-mediation works, and there are definite pluses. If the mediator wishes to appoint a co-mediator or assistant (and split their fee) - I’m fine with that as a client. But I think I would need some convincing to double the fee just so that the mediator can have an extra pair of eyes. And co-mediators may be an excellent idea for inter-national and multi-party mediations, community mediations, and workplace / group mediations. But from a client’s point of view, in a two or three-party commercial mediation, I think it’s a very different story.
As an in-house counsel have instructed mediators, in the U.K. and in the U.S., almost 50 times in the last 25 years. Each time I had to persuade my internal client that mediating was a good idea, and that this was the right time to do so. I then had to persuade the client that the mediator I had selected, or had been agreed with the other side, would be impartial and effective. These decisions are a ‘leap of faith’ by any client, and especially one who is new to mediation. If we add to that the complication of approving ‘another party’s mediator’, or the perception of ‘one mediator for each of the parties’ – it becomes (in my view) a leap too far.
I can imagine some clients saying, “with all these extra people in the room, why don’t we just leave it to our lawyers to sort it out?”. Where there’s more than one mediator I can also see problems around getting the parties comfortable around confidentiality, and building trust.
And then there’s that added sparkle you get with a really experienced mediator who, on the fly, takes a risk and does something fantastic that nobody was expecting. Will that happen as easily, and spontaneously, where there are two experienced mediators in the room? I’m not so sure.