David Richbell FCIArb (Mediation)

Commercial Mediator & ADR Specialist




Co-Mediation is one of David’s specialist areas and he has an established co-mediation pairing with




Eve Pienaar of Mediation Wise

a complementary pairing...Eve’s perspective:


David & Eve co-mediation

Co-mediation is systematically used in Family, Community and neighbour disputes, yet is not used to its full potential in commercial disputes. This is perhaps unfortunate, as co-mediation affords a far higher level of sophistication and scrutiny of the mediation process, which would be beneficial to some of the more knotty commercial disputes. This paper explains the benefits of applying co-mediation, in appropriate cases, to litigated and commercial disputes.


Cost

A perception that paying more for a co-mediation than a single mediator would cost on the day, is possibly the main reason parties shy from co-mediation. In difficult cases, either multi-issue or multi-party, this is a false economy.

The parties will often bring a partner and associate solicitor, along with boxes of documents, one or more experts, possibly Counsel and anyone from the organisation, from the coal face to decision makers, who might be useful on the day. The costs of the mediator(s) is generally a small percentage of the value in dispute or of the advisors’ and resource costs devoted by the parties on the day. Arguably, getting the very best mediation support is an investment towards the best possible chance of settlement in an otherwise expensive and risky process.


Multi issue or multi party cases

Another misconception is that co-mediation is only suitable for multi party disputes.

It is certainly appropriate – and sometimes essential – for multi party disputes. There is much “down” time for parties in a mediation (expensive and tedious, risking losing momentum) and to accelerate or maximise the efficiency of the process by enabling private meetings in parallel is highly effective. Doing the rounds of private meetings, a single mediator necessarily will take some time before coming back to the first party. Dividing this work makes sense and brings the real negotiation phase forward, increasing the chances of the parties reaching settlement on the day.

However, multi issue disputes are equally well suited to co-mediation. Parties remain engaged, working groups can be arranged dealing with coal face issues on the one hand, experts on the other. The mediators might propose to single out legal and liability issues in one room, while the co-mediator works in parallel on quantum of claims or unpicking final accounts or disputed schedules of heads of claim. A mediator working alone is constrained if spread too thin. So much more can be achieved in a day with two experienced mediators working in different rooms, and playing to the different strengths of the mediators can enrich the process considerably (see below).


Scale economies

Party representatives should always consider, in cases presenting some complexity, using a pairing of experienced mediators. The net benefit in terms of time (therefore cost) and chances of hitting the right numbers at not too late a stage are outlined above. There are also strategic reasons for using a pairing of mediators.

One of the more successful types of pairing, often used, involves a lawyer mediator working with an expert in the relevant field (surveying, in a construction dispute for instance). There are then a number of ways each can be utilised on the day, by the parties, to enhance the process of mediation.

The sector specialist mediator will better relate to the parties and expert advisers, relying on personal experience to enable them to put the best case forward and make a more sophisticated analysis of contributory negligence, quantum or factual issues and evidence available – the litigation fallback present in everyone’s mind on the day.

The legal mediator will work on liability and litigation risk issues with the party representatives or might work with the lawyers to refine issues in dispute and work on what the shape of a settlement might look like, for the parties to negotiate around. We have worked on cases where some working groups splintered off overnight to work on discreet issues, with yet others working through detailed heads of claim to winnow down the “gap” in dispute, under separate headings. Co-mediating working to the separate strengths of both mediators provides a much wider spectrum for the process to develop on the day and a richer, quicker and more effective route to settlement.

Value of the pairing

Needless to say, the benefits of co-mediation require the right pairing. We have touched on the obvious one: legal and sector experience. Others include: gender, cultural and different strengths or complementary approaches. One mediator may be better at “knocking heads together”, the Famous Name everyone wants to have work on their case. However, to get to the point where knocking heads will be productive, much data may have to be processed and a mediator with attention to detail and an ability to refine issues will be very helpful in getting the parties to a place from which they can safely negotiate, knowing all the cards are in play.

Co-mediating is not easy. It requires one mediator to take the lead on process management and for both to work together closely on the day. Successful co-mediators will have experience of working together and will have given careful thought to how they divide up the work so as to maximise the value of the pairing. There will be a road map they have developed for their joint approach: checking in every hour on the hour, brainstorming, reality testing options against one another. They will trust, know each other and recognise turning points in the mediation where they can help the parties make progress towards settlement. They can offer a more strategic approach to the mediation, than a single mediator or a mediator and assistant can.

Conclusion

Co-mediation is an investment in time, chances of settlement and richness of the settlement reached. It accelerates the process so can achieve in a day what one mediator may need two days to achieve – at significant cost saving. More importantly, it offers a rich dimension to the process, combining legal and sector specific skills to give the parties the best chance to reach a settlement which is pitched right in terms of risk and quantum.

Community and family mediations are very often, if not always, carried out as co-mediation for quality assurance and to enhance effectiveness of the process. Why not commercial mediations, where values at stake and issues in dispute are often more significant?

he also has an established co-mediation pairing with



Beverly-Ann Rogers of Serle Court Chambers.


The value of Co-Mediation: David’s perspective


Co-Mediation is the most effective, most rewarding, most valuable method of mediating disputes, yet few people use it and even fewer do it (properly).

Other strands of mediation, such as Matrimonial and Community Mediation, do it without thinking but Commercial Mediation has yet to discover, let alone adopt, the advantages of Co-Mediation.

It is not clear why Commercial Mediation should have adopted a different process to Community (and Matrimonial) Mediation. But, just as Community Mediation may learn the benefits of private (caucus) meetings, which are taken for granted in Commercial Mediation, so Commercial Mediation may learn the benefits of Co-Mediation, which are taken for granted in Community Mediation. It is time for all strands of mediation to learn from the experiences of the others.

Why the reluctance of users of Commercial Mediation to adopt Co-Mediation? I assume ignorance to be the main barrier (as it is in those who do not use mediation itself); and a presumption that Co-Mediations double the cost of the mediator and is therefore not economic or justifiable. Both assumptions will be challenged by this paper.

What is Co-Mediation?

At its best, Co-Mediation is the harmonious working of two complementary mediators who offer a diversity of skills, experience and personality. My pairing with Beverly-Ann Rogers was formed because one of us is female and brought a significant experience and reputation from the legal world; and the other is male, has grey hair (which represents wisdom), had by then already a decade of mediation experience, is a non-lawyer and comes from a business background. My further pairing with Eve Pienaar was for similar reasons, mainly to focus on mulit-party, international, complex cases, but also as a natural extension of our relationship as trainers. And all three of us mediate from the soul. But it goes so much further
than that. Mutual respect, an instinctive understanding of the other’s thinking, a common sense of humour and enjoyment of each other’s company glues the skills and experience together. That is why we use the word ‘harmony’ because effective Co-Mediators think and act as a unit, with the focus on the parties, not on themselves.

With that as the background, it has to be said that most commercial Co-Mediations are not Co-Mediations. So many are ad-hoc pairings that are put together by parties advisors, being seen as a ‘good idea’ because, for example, a famous name (FN) can be paired with someone who is known to be able to mediate. Somewhere in there is an assumption that ‘FN’ will control the parties through sheer force of personality and their (the parties) instinctive respect; the experienced mediator can work away in the background, effectively managing the process. Somewhere in there is also the glamour of ‘FN’ mediating “our case”.

Most ad-hoc pairings work as leader and supporter which is one step up from Lead and Assistant mediator. Sometimes the mediator is paired with an expert in the field of dispute being mediated. Some work, but they are not truly Co-Mediation. Often they arise from the assumption by the advisors that some expertise is needed in the sector of the dispute as well as experience and competence in commercial mediation. Of course, most regular users and practitioners of mediation accept that expertise is rarely necessary and specialism is there usually as a comfort-factor (the mediator understands my problem) and common language (jargon). So, if Co-Mediation is to work to optimum effect, the pairing should be carefully selected, both by the mediators themselves and also by the users.

Choosing your partner

Of course, I see my pairings with Beverly-Ann and Eve as being perfect and unbeatable! But inevitably what I write is based upon our own experience and what works for us. It is just possible that other combinations could work as well.

For a pairing to work there are two principal criteria. They must be:

• Complementary in personality, and
• Complementary in background.

Although humility is an essential quality of an effective mediator, most of us resort to quoting numbers of cases we have mediated, and their settlement rates (assuming both are high of course). It is difficult not to take pride in a job well done, when parties (and lawyers) say that settlement “couldn’t have been achieved without you”. It is great to see parties move from being anchored in the past (usually demanding revenge) to facing the future without a dispute (or loss of blood, or losing face). All (well, some of it) because of ME (or, in this case, US)! Put two such egos together in a Co-Mediation pairing and it is easy to see the potential for competition. Add to that the assumption of authority, of each being the one in charge (because mediation is a solitary business and we have to be in charge as it is our job to manage the process), and the potential for disharmony is clear.

Complementary personalities does not mean being the same. The Rogers/Richbell and Pienaar/Richbell pairings could never be seen as cloning. Complementary personalities mean mutual respect, if not admiration, and a total trust that the other will always be working with you. This does not always mean agreeing, because one of the beauties of Co-Mediation is the combination of differences. Co- Mediators need to enjoy each others company, to be open and honest, and vulnerable with each other, so that, as they work more together, they become a ‘unit’, joints unseen, seamless, thinking and acting as one. That is complementary in personality.

Complementary backgrounds, are perhaps easier to find. A lawyer/non-lawyer pairing is invaluable, if only to keep a balance between ‘big picture’ (which tends to come from a business-based background) and the details and parties rights (which tend to dominate a legal mind). Lawyers tend to identify with the legal teams, nonlawyers with the parties.

This is particularly beneficial where parties see lawyer mediators as continuing the legal process from which many parties want to move away, but conversely it also gives a legal authority to which the advisors may comfortably respond. A male/female pairing has obvious benefits. Besides bringing together different styles and approaches and covering the issue of a party’s potential gender preference, it also facilitates the ‘P’ factor. Most experienced mediators are alert to the opportunity provided by a party (and sometimes a lawyer) taking time out. It could be for some fresh air or a smoking break; often it is to visit the toilet (hence the ‘P’ factor). Many blockages have been by-passed by off-the-record conversations with the mediator whilst standing at the wash bowls washing hands. That is not so easy when the mediator is of the opposite sex, so a mixed-gender pairing will maximise the potential that these opportunities afford. Of course, the mediator needs to check that the cubicles do not house people from the other side (which in itself can be a disconcerting exercise if the party is not forewarned by the mediator!) so that confidentiality is preserved. I recall a case where the Claimant had hinted at a figure that we felt might settle the dispute, but whose lawyer was being very protective (probably wanting the best deal for his party), so stifling his client. An ‘of the record’ chat in the washroom confirmed the hints and from that moment there were two negotiations, one public, one private. The deal was done an hour or so later at a figure slightly higher than the one hinted.

Parties selecting Co-Mediators

It will be seen from the above that selecting a Co-Mediator pairing deserves a lot of thought and preparation. After all, the mediators are there to give the parties the best opportunity of doing a deal, and different styles and techniques may be appropriate to different cases. So ask:

• Do the parties need facilitators (to shepherd them towards a deal) or dealmakers who will ‘bang heads’ together? Or both?
• Does a male/female pairing bring added benefit?
• Has the proposed pairing a ‘history’? If so, should references be obtained (not always possible in a confidential process)?
• Should they be interviewed to be sure that they will give confidence to the parties?
• Who has the reputation (and what for)? Other peoples experience of the pairing should be a good guide (but not always the best because they may not have chosen well!).

The above assumes that the pairing will be lawyer/non-lawyer as I believe that should be a ‘given’ for Co-Mediation.

If the case deserves Co-Mediation, price should not be an issue. Certainly a pairing should not be chosen (or rejected) on price alone.

The case for Co-Mediation

It is probably easier to deal first with the case against Co-Mediation. There are two main reasons (both, in my unbiased opinion, untenable) and one misconception. The first reason against is ignorance. Rather like the abundance of ignorance that still prevails on mediation itself, there is an almost total ignorance of why Co-Mediation should be an automatic consideration for
most commercial disputes. Co-Mediation is not considered by most because most of those doing the considering are not aware of, or, rather, have not thought about, its benefits.

The question to be asked is not “Why use Co-Mediation?” but rather “Why not use Co-Mediation?”. Once asked, it is difficult to come up with persuasive reasons against.

The second, and usual reason against using Co-Mediation is cost. Why pay double when you only need to pay for one? This disregards the fact that the mediator is (usually) paid the lowest fee of those present at the mediation (certainly if each team is properly costed). The total cost of a days mediation for a Co-Mediation pair is less than 1% of a £1million dispute. Cost is therefore hardly a credible argument against considering Co-Mediation. “But”, some mediation users will say, ”we get deals using only one mediator”. “That may be fine (and well done you)” I reply “but what about the potential deals that one mediator didn’t think of?”.

That is the main advantage, beyond those already listed, of using a Co-Mediation pairing; the bringing of two minds to helping parties reach a settlement. Two intellects (well, in our case, one) applied to the problems, two sources of creative problemsolving, two centres of experience focussed on the parties disputes.

Of course, rather than be an extra cost, Co-Mediation may generate cost savings. Two mediators may halve the mediation time. As noted below, it does not quite work out like that but time is used more efficiently, especially in multi-party disputes, with the likelihood of consequential savings in team and management time. Undoubtedly mediations that have been arranged for two or more days have been significantly reduced in time by using Co-Mediators.

This leads us to the common misconception about Co-Mediation; that it is only suited to complex multi-party cases. Of course it is suited to multi-party cases, complex or not. It is even more suitable when there are several parties defending and several parties claiming in the same dispute. But parties should consider Co-Mediation for all commercial disputes (although I accept that it may not be cost effective for cases less than, say, £200,000 in claim value). The advantages of two minds, two backgrounds, two genders and two styles apply to all mediations, large and small, simple and complex.

One of the selling points of mediation is the ‘added value’ brought by the mediator in being a neutral voice, bringing experience and a mind uncluttered by the detail (in which some people have often been wallowing for years). That ‘added value’ can only increase with the right Co-Mediation pairing.

To read the full paper on Co-Mediation by David Richbell email us to register on David’s newsletter.

Fees for a co-mediation will be quoted on a case by case basis, taking into consideration each client’s particular needs.