Typically, the life of a mediator is more of a monastic experience. However, certain legal disputes may be better handled by two neutral parties working together to help the case reach a resolution.
There are many cases that involve multiple parties (i.e., 5-20), a significant factual complexity, and technical knowledge, which would benefit from two mediators with different skill sets working together in a co-mediation.
Roy E. Wagner, Marquette 1978, is a shareholder and Construction Law and Litigation Section chair at von Briesen & Roper, S.C., Milwaukee. His practice includes mediation, arbitration, and litigation.
Since my law practice significantly revolves around construction disputes, we see a significant amount of multiparty and technically-driven disputes – particularly with construction defects or delay claims. With the former, there may be significant insurance disputes as well. The co-mediation profile may also apply to other types of complex disputes, such as class actions, multiparty contract, securities disputes, and shareholder disputes.
In one complex construction case that involved more than 20 parties, I was asked by the judge to mediate the case after the first attempt failed. After discussing the challenges with the first mediator, I determined co-mediation with a two-mediator team was warranted, along with changes in the process.
When Co-Mediation Is Needed
Consider co-mediation in lawsuits with 10 to 20 parties, millions of dollars in dispute, complicated factual-based legal issues, technical insurance coverage questions, and/or that are highly contentious.
One effective technique is to address challenges with a team of two mediators. Co-mediators bring the following:
experience at working together;
pooling their strengths;
dividing tasks sufficiently;
combining industry and technical expertise with sophisticated mediation skills;
division of mediator responsibility, i.e., working with insurance coverage lawyers or specific technical parties; and
broader evaluative skills.
Also critical are mediators who intimately understand the particular industry and legal standards involved. These cases may be too large for a single mediator or a generalist mediator. A generalist mediator may find it beneficial to reach out to an industry-specific neutral in the areas of securities, employment, intellectual property, and construction, where their experience may prove valuable.
Tips for a Successful Co-Mediation
Co-mediation requires a plan and a division of labor between the mediators, as well as between the mediators and the parties. The co-mediators must plan how to:
The standard mediation process normally begins in a joint session with all parties and counsel present for opening statements or instructions. This is followed by a plenary session, followed by private caucuses where the mediator confidentially explores with each party their litigation and settlement positions.
A modification to this normal process may be that mediators meet with parties individually a few days before the scheduled plenary mediation session. The mediator will make a 30-minute “appointment” (but plan on 60 minutes) with each party separately, to become personally acquainted with the parties and their counsel and explore their position without the pressure of time.
The use of a preliminary pre-session caucus also importantly reduces the amount of downtime otherwise experienced by parties and counsel as they are left waiting for their individual mediator caucuses. This downtime problem is compounded when there are a dozen parties waiting for their turn. The pre-session caucuses are a valuable way for the mediator to get a better understanding of technical issues, develop rapport and have more reflective time before the plenary sessions begin.
Finally, consider using a 10-minute countdown timer to push the plenary sessions through. I use a countdown app on my iPad for all to see during the private caucuses.
Benefits of Co-mediation
Experienced co-mediators work together and can also heighten the chances of settlement. In the evaluative stage of mediation, both mediators present their evaluations in their own objective manner. This dual evaluation may be more persuasive to parties, because they receive two opinions on how judges and juries might react to their case.
Co-mediation may actually be more cost effective, particularly with multiple parties where a single mediator may necessarily create more downtime and lengthens the process. Co-mediation teams may also provide an opportunity for the mediator diversity based upon gender, age, and experience.
If you are faced with one of these multiparty complex cases, consider adding a co-mediator to enhance your effectiveness. After all, two heads may be better than one.