Co-Mediation: conductors in tandem

Mediation is an interesting alternative to court that provides an arena for a unique interplay between the parties, and the dimensions of their dispute. It brings the parties together for a discussion of their issues, which often consists of legal, emotional, and financial dimensions to name a few. Reaching a settlement is dependent on many of these dimensions and on the parties at the table – whether they are the parties involved, their lawyers, family members who exert influence, or the mediators themselves.

Naturally, the more participants are involved (be they the parties themselves, or their respective counsel), the more complicated the process can be, as additional dimensions are added. There is no limit to the number of parties in a mediation, and even when only two parties are at the table, sometimes they are under the influence of family members, new spouses, or friends. These are all parties that can affect the process of mediation, for better or for worse. But the role of the mediator remains critical in how the mediation proceeds regardless of the number of parties, as they are the conductor of the orchestra.

A mediator is an impartial, and neutral third party who helps parties reach their own mutually acceptable settlement of the issues at hand. An effective mediator will ensure that they create a process where all parties feel heard, understood, respected, and ultimately, safe. The mediator assists the parties in establishing ground rules, communicating the interests behind their positions, explore and brainstorm the options they may have on their issues, and some mediators offer insight into how a court may decide on their matter. The mediator therefore exerts an influence that can significantly impact the outcome of the mediation process. Where two mediators are present (as is the case in the co-mediation model), there is a significant opportunity for even greater success…or self-sabotage!

There are many benefits in the co-mediation model, however they are ultimately contingent on the dynamic and compatibility between the mediators. The mediators must be able to cooperate as a team and compliment one another’s strengths, personality, and skill sets. Co-mediators have an excellent opportunity to work together and create an environment that encourages the participants to do the same. This compatibility is also true for the parties and their lawyers. The more cooperative they are, the more likely that the mediation will be successful, with longer lasting results. Assuming the co-mediators are able to create the climate for cooperation, then the parties ultimately reap the rewards:

One practical benefit, is that while one mediator is taking notes, the other can directly interact with the parties. They can also divide tasks between them, (ex. meet with the parties separately but at the same time), which allows them to address the issues of the parties more efficiently. With the division of labour divided between the mediators, each mediator can focus on a specific task or issue better than if one mediator was tackling all of the issues.

A greater sense of symmetry is also achieved: with one mediator, sometimes the parties may feel that the mediation is one sided, with one party being heard more; however with two mediators, this risk is diminished as the mediators can ensure that both parties feel heard, and clearly. It also ensures that each of the parties will be able to connect with at least one mediator allowing for a greater sense of rapport with the mediators, and greater trust in the process as a whole. As a result, clients are likely to find that the process is fairer, and better attends to the parties’ needs.

Participants in the co-mediation process also have the benefit of two professionals, each with their unique strengths and skillsets. Some will be more empathetic, better at building rapport, have more legal experience in a specific area, better able to read body language and emotional cues, specialized familiarity in analyzing financial documents, and so on. Having two mediators gives the parties the advantage of drawing from two pools of skillsets, instead of one to assist with their issues.

Many could be concerned that the use of two mediators increases the costs for both parties. While this can be true in some situations, in others, the efficiency with which two mediators can assist the parties may actually decrease costs as the issues can be addressed in a much shorter time period and in an environment that better promotes a mutually acceptable settlement.

Where mediators lack compatibility, the process breaks down. It can become disorganized, costly, and time consuming as the mediators are not only dealing with the conflicts between the parties, but their own as well. Rather than focusing on the parties, the mediators may become entrenched in their own incompatibilities. An orchestra cannot play well if there are two conductors operating on completely different rhythms.

In short, though an increase in the number of participants can have a significant impact on the mediation, this impact is perhaps greatest when there is an increase in the number of mediators. Parties are not expected to necessarily be on the same page: if they were, they may have settled the matter on their own! But it is expected that where there are multiple mediators, that they be on the same page. After all, a key role of the mediator is to bring the parties to the same page so that they can achieve a settlement that is mutually acceptable. This cannot happen if the mediators themselves are not on the same page. The co-mediation model offers an opportunity to establish a positive tone and climate for a constructive discussion, and settlement. And thankfully, this is usually the case. Where two conductors are promoting the same tune and rhythm, the orchestra will play music to our ears.

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