JAMS ADR Insights
Co-mediation: Not Just For Family Law or Personal Injury Cases
Published March 24, 2014
Recently I mediated a case where the parties were all new to mediation, so I took more time explaining what mediation is, is not and its benefits. A benefit in any mediation, of course, is that, because the parties control the process and the outcome, they can work with the mediator to design a process tailored to their case and their needs. In certain cases, another benefit can be designing some or all of the case as a co-mediation.
Managing complex multi-party cases—keeping the ball moving and everyone’s head in the game.
Everyone who has mediated has experienced the momentum that builds at some point, hopefully not too late in the day, to help move a case to resolution. Many have learned that if the process bogs down and loses momentum, opportunities for resolution on the day of the mediation session can be lost. Some cases have so many parties, and/or issues in the primary case, and/or underlying issues such as bankruptcy or insurance coverage, that it would be unwieldy for one mediator to keep all parties engaged and moving forward during the mediation. Some of these issues may be handled before the mediation session by phone calls, information exchanges, or preliminary meetings. However the day of the session is still key.
One of my colleagues, known for his expertise in construction cases, regularly mediates cases alone. However, from time to time, he has recommended that the parties agree to have me co-mediate the day(s) of the mediation session with him. Our mediation styles complement each other’s, allowing me to go off and work with the smaller subs who seem inevitably drawn into such cases (and their sometimes multiple insurers and/or bankruptcy counsel) and help get their issues resolved. That way he and the primary parties can concentrate on the core issues of the case. When my work is done, I can either leave the mediation or go back and work in tandem with him on other issues, depending on the design of the mediation.
This co-mediation design also worked well in a recent IP case where, although there were not as many parties, another colleague stayed with the primary parties and I worked with one sub-group with distinct issues that would have drawn disproportionate time and attention away from the main case. Were a case not to settle on the day of the mediation, bringing the two mediators back together for a closing session could generate more options for next steps and follow-up.
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