AUTHOR: KENNETH A. RYDER
Most mediations are handled by a single mediator. A single mediator, properly trained and engaged with the parties, is usually very effective and can help to guide the parties and their counsel towards the successful resolution of their dispute.
However, there are times when the use of co-mediators can be more effective and appropriate. In the co-mediator model, there are two mediators (I have never seen a situation where there are more than two mediators). The co-mediators work as a team with each other, but also with the parties and with their counsel. When should you consider the use of a co-mediator model?
A common use of the co-mediator model is when the dispute is a highly emotional situation. Child custody and divorce cases, family disputes, and similar highly-charged cases, can often be much more effectively handled by co-mediators. In working together jointly with the parties or apart in separate caucuses, co-mediators can often better manage the extreme emotions in these types of disputes. In addition, in a co-mediator model, a party may feel more empathy and that he/she is better heard by one mediator, whereas another party may feel the same with the other mediator – whether due to gender identification, age, similar life experience, or other factors. In a highly emotionally charged dispute, making the parties each feel that they are being heard is usually one of the most important skills that the mediator brings to the parties. If this can be facilitated through the use of a co-mediator model, the chance for a resolution through mediation is greatly enhanced.
In complex cases, especially those involving complex legal issues or significant amounts of data, the use of co-mediators may also be a more effective approach. Using co-mediators may be a more realistic approach for the mediators to better assemble and understand significant amounts of information that may have been accumulated over years of discovery and boxes of data. Similarly, having one or both mediators be well versed in complex legal issues involved in a case may help the parties to better understand and appreciate the strengths and weaknesses of their case and various options and alternatives to consider in resolving their dispute. Finally, when there are multiple disputants involved in a case, having co-mediators can facilitate better management of the mediation process.
I have recently been engaged in few co-mediations involving community-based disputes. In each one of them, between myself and the other co-mediator involved in the mediation, at least one of the above factors was present, thereby making the co-mediator model the most sensible for the parties involved. I am pleased to say that in each of those co-mediations, we were able to assist the parties to amicably resolve the dispute in the mediation process.
When deciding to use co-mediators, it is important that the mediators be able and willing to work together as a team. While the mediators among themselves may decide to have one of them act as the “lead”, nevertheless the co-mediator model is truly a team approach. While it is not critical that the two mediators have worked together in the past, nevertheless, it is important that the mediators have previously successfully worked in a co-mediation setting. In choosing co-mediators, the same considerations should be undertaken as when choosing a single mediator . In deciding on a co-mediator model, however, you may often look for mediators who have different strengths, skill sets, or approaches. Again, the objective is to choose the most effective mediator or team of mediators for your particular dispute. The goal is to get the dispute resolved: if the co-mediator model appears to be a more logical and proper process for achieving this result, then it should be seriously considered by the parties and their counsel.
Mr. Ryder specializes in real property law with an emphasis on commercial development, leasing and institutional lending. He is also a mediator with the Dispute Resolution Services Program of Orange County’s Community Service Programs (CSP), having trained with both CSP and with the Strauss Institute for Dispute Resolution, Pepperdine University School of Law.