Co-Mediation: Does it Make Sense?
Co-mediation is sometimes used in divorce or family matters, usually with a male and female mediator working with a male and female couple. The thought is that such an arrangement will lessen the possibility or the perception of gender bias. Experienced mediators are careful to avoid any bias as best they can or, are at least able to pick up when a particular spouse/partner is sensing some bias.
I don’t do many co-mediations; however, my experience when I have has always been positive. Two heads really can be better than one, and inevitably one mediator will pick up on things or have an idea the other did not.
Ironically, while part of the impetus behind co-mediation in family matters is to create more “gender comfort,” connections do not always fall along gender lines. A female party may feel more comfortable with the male mediator and a male party with the female mediator.
The point is to take advantage of the possibilities co-mediation provides. Irrespective of gender, one mediator talking separately to a party may open up a dialogue that is otherwise difficult to have. Sometimes I have turned to my co-mediator during a break and said, “Do you think it would help if you (or I) had a separate conversation with so and so?” We’re almost always on the same page, and I’ve never regretted when such separate conversations have taken place.
I have never used a co-mediation in a commercial, employment, or personal injury matter. However, when appropriate, I have used one party’s counsel to serve a quasi mediator role. This can happen when one of the parties—typically, though not always, a defendant—is only nominally in the case, and the attorney for that party has much less of an adversarial role. He or she may have some credibility with the co-defense or co-plaintiff counsel and be seen almost like an impartial expert. I have sometimes pulled those counsel aside to ask their opinion about something or even enlisted their help.
Co-mediation does raise the issue of cost. Two heads may be better than one, but two heads also cost more.
Have you—as party or mediator—found co-mediation preferable or not? In what situations?
Have you ever been involved in a co-mediation in a non-family matter, and what was your experience?