When you have a toothache, do you seek out co-dentists? When you have an annual physical, do you schedule an appointment with co-internists? Have you ever heard a soul-stirring sermon delivered by co-clergy? Closer to home, have you ever seen co-lead counsel for a party at a mediation? Or co-questioners of a witness at a deposition? Or co-first-chair trial counsel?
The answer to all these questions is likely no. More isn’t always better.
That’s because assigning two people the same task is a pretty good way to assure neither feels true responsibility to get the job done. “Co-chair equals no-chair,” I learned from the late Sheldon Sloan when he was president of the Los Angeles County Bar Association. For the job to be done well, someone must be in charge. The sign on President Harry S Truman’s desk said it best: “The Buck Stops Here.” You should therefore be skeptical of the marketing of “co-mediation.”
If you have the one-in-a-thousand case where someone suggests an extra mediator, you should ask, why? What is it one mediator can’t do? What skill does your preferred mediator lack? Most commonly, some mediators claim they are subject matter-experts in an arcane area of the law and that you should hire them to work alongside process-expert mediators, causing additional fees, scheduling delays, and risks from lack of coordination.
In the post-pandemic era, with all mediators now practicing online, and therefore nationally, why can’t you find one mediator with all the skills and expertise you need? Good mediators, armed with your good briefing sufficiently in advance of the mediation, are almost always able to get up to speed on the substance of your case. As the old riddle goes:
Q: “What’s the difference between a novice and an expert on any issue of law?”
A: “48 hours.”
Some have said they have had good experiences with co-mediation. Like the rest of you, I am always learning, so I am curious to know the particular circumstances in which extra mediators made a difference. Perhaps a case has involved so many parties that a mediator needed an assistant to keep track of them all. There’s a difference, though, between an assistant and a co-mediator. And I have had good experiences with observers (typically newer mediators) at mediations. They always notice something I didn’t, and the mediations are always better as a result. But that’s not co-mediation, either, because the buck always stops with me.
So my advice is to hire good mediators. Brief them well in advance of the mediation. Talk to them, answer whatever questions they have. Collaborate with them to design a process that fits your case. Then one good mediator, properly prepared, will be an odds-on favorite to get the job done. On the odd chance there really are reasons you need extra mediators, by all means, hire them, too. But be sure you can answer this question: “The buck stops where?”
Paul Van Osselaer:
My views are based on having served as a co-mediator a few times. My first time was six years ago, and I’ve had about one a year since. That experience tells me it can be very helpful, but not for all cases and should be an exception rather than the rule.
I admittedly approached the first one with some trepidation, but my experience there and in others was quite positive, as I believe it was for the parties. It was positive because the parties (or a court in one case) gave careful advance thought to what might be achieved based on the particulars of each case instead of acting on a gut feeling that “two heads are better than one.” And it worked because as co-mediators, after consultation with counsel, we invested time to learn each other’s approach, strengths and weaknesses and design a process best suited for the dispute. The danger, of course, is that co-mediators can operate at cross-purposes, result in a waste of time and resources, or unintentionally be played against each other. I know some may advocate a broad use of co-mediators where coverage issues exist with other issues. As someone who exclusively mediates coverage cases around the country, I suppose I should embrace that. But just because a legal specialty is involved should not, by itself, be a basis for using co-mediators. Mediation skills span specialties and, like coverage litigators, we coverage mediators are quite used to dealing with the underlying issues involved in coverage disputes covering a wide range of substantive law. That said, co-mediators can be useful in the right case.
Here are some things to think about when considering co-mediators.
- Nature and complexity of the dispute. I would reserve co-mediation for more complex, multi-day mediations. Even then, look at the number of parties and how divisible some issues are. Underlying tort damages with numerous claimants, bankruptcy issues, IP issues, or construction claims, for example, may require such a time commitment that coverage issues may deserve separate, coordinated attention. A two or three-party case with those same issues might not be deserving of co-mediation, but if 20 or 30 parties of varying interests are involved, it might be. Ask “what would each mediator bring to the table?” “How would they work together?” Consult candidates on their approaches and whether they think co-mediation is appropriate.
- Time considerations. How will each mediator’s time best be used? Having both mediators travel between rooms as a couple generally is not the best strategy or use of time. There may be times when that’s appropriate, but one benefit of having co-mediators in large multiparty cases is that it assures more parties are engaged with a mediator throughout the day.
- Co-mediator coordination. Mediator coordination is, by far, the most important factor in successful co-mediation. This is no time for mediator ego. When I have served as a co-mediator, a driving force behind the success is the fact that we spoke or met frequently, having breakfast, a brief lunch and/or dinner together each day to compare notes and plan.
- Co-mediating in Zoom. Whatever future virtual mediations may have, Zoom makes it easy for co-mediators. One mediator is a “host,” making the other a “co-host,” who can move freely among rooms and join the other mediator in a “Mediators Room,” staying in touch through texting.
Just as there are no cookie-cutter approaches to mediating any case, there is no right or wrong answer to whether co-mediation is helpful. Co-mediation is just another tool for parties to consider in the right case.