Co-Mediation in Action
Co-mediation can be done in at least three ways: 1) front-seat/back-seat driving, 2) division of labor or 3) taking turns.
This type of co-mediation is often used as a training technique for new mediators. Typically in this training model, the more experienced mediator becomes the “lead” mediator while less experienced mediators observe and incrementally participate as their expertise and comfort with the process increase. Patricia Gross, coordinator of the El Paso County Dispute Resolution Center, states that newly trained DRC mediators are required to participate in co-mediation until they feel confident to proceed on their own, or until she has noted that their skill level shows they are ready to go solo. Pat believes that, as a training tool, co-mediation offers the unique opportunity to observe and learn effective techniques from a “seasoned” mediator as well as the opportunity to be critiqued in a positive manner.
Front seat/back seat co-mediation has also been used with the new mediator conducting the mediation and the more experienced mediator taking the back seat role. In this variation, the more experienced mediator acts as observer and back-up and provides feedback to the new mediator before and after the mediation. The Texas State Office of Administrative Hearings and the U.S. Navy ADR programs use this variation to train their new mediators.
Division of Labor- My job/your job:
Similar to front-seat/back-seat co-mediation is the division of labor where the parties specifically divide the functions to be carried out by each mediator. One variation of division of labor co-mediation is very much like the process of facilitation where one mediator “conducts” or facilitates the mediation and the other acts as a scribe (Kestner & Ray, 2002). This labor division could encompass two mediators complementing each other by each being in charge of a different aspect of the mediation, such as: factual content versus communication patterns, legal issues versus relationship or emotional issues, product (settlement) versus process (Baker, 2004; Erickson, 1997; Mercer).
Another variation is when each mediator works with one of the parties throughout the whole process. Some believe this approach helps each party feel more comfortable, while others discourage it because it may negatively affect the neutrality or appearance of neutrality of one or both mediators (Kestner & Ray 2002).
Taking Turns: By stages or with the flow
Perhaps the most common practice among experienced interdisciplinary co-mediators is where they take turns carrying out similar, rather than opposite or complementary tasks in mediation. One variation of this type of co-mediation is taking turns at each stage of the process. Another is to “go with the flow” where the co-mediators take turns as situationally appropriate.
In a “going with the flow” mediation, mediator A may speak to the parties while B listens, observes or writes. If B suddenly notices a party’s reaction, has an idea, wants to address an issue, or senses that the mediation should take a different direction, then B unobtrusively signals A his/her intention to interject. Optimally, the co-mediators would have agreed on what signals to use and when. After signaling, B generally waits until A finishes the current point or conversation. Then B speaks while A listens, observes and/or writes. In this “with the flow” co-mediation, the mediators may become aware that some parties connect better with one of the mediators. The co-mediators may then change their plan accordingly, perhaps letting the: “better-liked” mediator assume a greater role or more specific tasks as may be most useful.
One Team’s Co-Mediations
Many co-mediators use different elements of each of the above categories. Mediators looking for guidance and practice guidelines on all types of co-mediation are encouraged to read authors (Love & Stulberg, 1999).
Bud and Rena Silverberg of Dallas, Texas co-mediate in a way that works for them. Bud states: “When I’m involved in mediation, I focus on the attorneys, the interests, the solutions, overcoming the obstacles. We have a system. When we go into her area of expertise, she goes forward and I back out and vice versa. It’s like the book Getting Past No. Ury tells us to “go to the balcony” and observe from a distance. Watching parties react, I pick up things that she may miss because she is intensely involved with the parties.” Bud remembers a mediation when Rena was talking and he was observing. He noticed a party’s reaction and called for a break. He told her about the reaction that she had not noticed. She then changed strategies and the case settled.” Bud believes the result might have been very different had either one mediated alone.
A Unique model - Imago Co-Mediation
Texas mediators Doug Wilson and Peggy Halyard practice Imago in their interdisciplinary co-mediations. Imago is a new type of relationship therapy that emphasizes ways for people, especially couples, to connect with each other. Imago relationship therapy involves the teaching of communication skills to help build trust in relationships by learning communication skills that create a feeling of safety. It helps couples to connect more deeply and appreciate each other.
Doug and Peggy start with the parties and their attorneys in circle fashion facing outward on couches. Then they caucus and go to the standard table mediation. A safe environment is created and the health and best interest of the children is emphasized where a positive post-divorce, business-type relationship can develop. Peggy and Doug demonstrate Imago Dialogue until the parties feel safe enough to try it themselves. No therapy is provided, only education. Sometimes as they have the parties start with a simple appreciation. “We may ask them to dialogue about ROCKS,” Doug states, “It is amazing to watch a couple who have not talked to each other for two years begin to communicate respectively to each other and really listen to each other using the Imago dialogue process.” Often Doug and Peggy will role play. Doug sits next to the husband, Peggy next to the wife. As co-mediators, they do the dialogue. Once, as a result of this process, a couple reconciled after not talking to each other for two years.
Doug and Peggy believe that the parties respond better to co-mediation “because all have a basic human longing for connectedness. The parties really want a conscious relationship instead of an unconscious automatic anger reactivity painful type relationship.” According to Doug, “The Imago dialogue slows the process down so a safe environment exists, allowing parties to stay on the ‘high road’ - using the frontal lobes instead of resorting to the low-road reptilian old brain causing angry, defensive behavior, or shutting down in the fight or flight mode.”
Four Teams of Co-Mediators
Maxwell “Bud” & Rena Silverberg are married to each other and co-mediate in Dallas, Texas. He is an attorney and she has a master’s degree in social work. They were co-recipients of the State Bar of Texas ADR Section’s 2005 Frank Evans Award for their extraordinary work as mediators and co-mediators.
Douglas Wilson & Peggy Halyard are another married couple of co-mediators in Galveston Island. They also do Imago co-mediations and training. Doug is an attorney. Peggy is a therapist who has worked at the Neuropsychiatric Center of Mental Health. She also worked for NASA for 20 years as a program analyst, an experience that Doug believes makes Peggy “immensely helpful in doing couples’ property division” in family co-mediations.
Carol Hoffman and Don Graul comprise one of the longest practicing co-mediation teams in Texas. Both Don, a family attorney, and Carol, an accountant, are very enthusiastic about co-mediation and believe it benefits mediators as well as the parties. They co-mediate mostly family cases in Houston, though they see the usefulness of co-mediation in many other areas such as probate.
Naomi & Jim Rosborough are another couple of co-mediators in Houston. Naomi is a psychotherapist with a current interest in psychological trauma and president of the Houston-Galveston Trauma Institute. Jim has a business background with a large corporation and taught negotiation skills at Rice University for over 20 years.
Benefits of Co-Mediation
“Balance” was the word most used by people who described the benefits of co-mediation. Pat Gross, from El Paso, stated that co-mediation is most often used in neighborhood justice mediations where parties rarely have the benefit of legal counsel, so two mediators can add “balance.” She adds that co-mediation is especially important in family cases “to minimize the perception that one spouse has some advantage over the other spouse due to the mediator being male/female.” Jim Rosborough states that co-mediation provides “a model of effective collaboration for parties,” and that diverse co-mediators can introduce “some balance” since the “parties can identify with mediators that are more like them in gender and background.” Doug Wilson believes that the parties feel calmer and safer in the presence of co-mediators of different genders. “It’s amazing,” he says. “Co-mediation is more balanced with the male/female mediator form - parties do not feel ‘ganged up on.’” Bud Silverberg adds: “I understand the legal process, and Rena is wonderful with handling people’s emotions. Rena has a knack for defusing anger. She works with people’s emotions; I work with the legal issues.”
Besides bringing balance, co-mediation can be educational to both the parties and the mediators. Doug Wilson says that, following the co-mediators’ example, the parties can learn how to communicate better with each other. Similarly, Don Graul states: “Occasionally we will disagree, and we model how to disagree. What makes it so interesting is that we can talk about it right after the mediation. We find out what the other’s impression was. It opens up all kinds of ideas and ways to do it better next time. That’s probably the rewarding thing about co-mediations, how quickly we can get feedback from each other.”
Both Carol and Don added that it’s hard for one mediator to see everything that’s going on. Two mediators can get different perspectives. Both were in the same mediation but may have heard something very different. Having two mediators helps you understand much better. Sometimes you clarify with each other or the parties. Sometimes the parties may have heard something else.
Jim Rosborough added that interdisciplinary co-mediations bring about more creative ideas and options to help coach participants. It brings additional expertise to the table as well as “provides richer input on what is happening and more process options.” Doug Wilson states that having a psychotherapist may help both co-mediators be more in tune with body signals. “We can tell where they’re going. We can see the anger… the fear underneath. Having an attorney “keeps us on track…talk the same language as the attorneys in the case”.
Three main drawbacks in co-mediation may be: incompatibility or disagreements of the mediators, increased costs, and possible ethical concerns.
1. Co-Mediator Disagreements or Incompatibility
While differences between mediators may add balance and synergy to the process, some differences may instead do the opposite. Years ago, I co-mediated a juvenile victim offender case with a probation officer. When the parties reached an agreement I stated I would write it down for them to sign and keep. My co-mediator openly disagreed, saying that a written agreement was not needed. I was surprised but rather than disagree in their presence, I was quiet and the parties left without a written agreement. This disagreement could have been the result of any number of things: a power struggle, lack of preparation, lack of communication, cultural differences, or failure to clarify our assumptions about the process and/or our roles.
In order to avoid these pitfalls, co-mediators should anticipate disagreements and obstacles and prepare prior to the mediation. They should always prepare and talk about co-mediation logistics before a co-mediation. They should get to know each other as well as their conflict and conflict resolution styles, their preference in co-mediation styles, etc. They should also agree on how they will signal each other their disagreement or their desire to interject.
Differences are not the only obstacle. Co-mediators that are too similar may also cause the mediation to be unbalanced. Galveston mediator Meg Walker and I had that problem once when we co-mediated a pro-bono family case. We were told to start without the husband’s attorney, who would be late. A few minutes into the mediation, the husband complained of too many women in the mediation. We apologized, offered to quit or change. He responded that no corrective action was needed. He seemed to feel more comfortable once we addressed the concern, especially after his lawyer, a woman, arrived at the mediation.
2. Real or Perceived Higher Costs
Some co-mediators charge more than in a solo mediation but even when they do not, may be perceived as more expensive. These real or perceived higher costs may drive potential customers away. However, co-mediation may still be more cost effective and, even if more expensive than traditional mediation, it is still much less than the costs of litigation if a case does not settle (Mosten, 1997). To counteract misperceptions, perhaps co-mediators should more proactively advise clients of the benefits of co-mediation and how, in the long run, co-mediation may be better or shorter than traditional mediation, thereby saving the parties some expenses in the long run.
3. Ethical considerations
Most states have rules of professional conduct that prohibit lawyers from partnering or sharing legal fees with non-lawyers as well as from assisting them in practicing law without a license. While mediation is generally not considered to be the practice of law, the line between mediating and practicing law can be blurry and the sharing of fees between co-mediators may create an ethical gray area for an attorney co-mediator (Beyer , 1998; Menkel-Meadow, 1995; Nolan-Haley, 2002; ABA, 2002. Furthermore, in some instances mediators have been accused of practicing law without a license, a criminal offense in most states. Attorney mediator’s run ethical risks if their non-attorney co-mediator inadvertently gives legal advice. Therefore, mediators must constantly avoid crossing the line and giving legal or other advice. On the other hand, at least one author believes that non-lawyer mediators are less likely to be accused of practicing law without a license with a lawyer mediator present ( Erickson ).
Lawyers are not the only professionals with ethical concerns I co-mediations. Carol Hoffman, a Certified Public Accountant, states that the most important thing about being a CPA is that she is able to ask the right questions. “One of the things we must be careful about is that I’m not giving them tax advice,” she states. “I’m only giving my background about things they would want to talk to their CPAs about. Same with Don….. The biggest ethical problem is to insure them we cannot solve their tax and legal problems. We make that really clear.”
The Future: More Interdisciplinary Co-mediation?
It has been said that, two mediators are not only better than one in that they can complement each other, but that in a way they can more than double the quality of the mediation, adding synergy to the process (Lerner, 1999; Erickson). Complementary differences between the two mediators, in personality, gender, worldview, culture, professional background or disciplines, can often make co-mediators more effective than if they mediated alone.
Author and commercial co-mediator David Richbell adds that “The advantages of two minds, two backgrounds, two genders and two styles apply to all mediations, large and small, simple and complex.” As such, the co-mediation model has been recommended as a process superior to traditional solo mediations in family law – where it is most frequently used – as well a commercial, medical malpractice, workplace, environmental, and just about any type of dispute. (See: Gitchell & Plattner, 1999; Lerner, 1999; Bond 1997; Louis 1999; Richbell; Guadagnino).
However, if co-mediation is so good, why is there such apparently little demand for it? Some co-mediators believe that this is due to consumer ignorance. Don Graul states “It has not spread rapidly around the city. Don’t know exactly why not, but as soon as the parties see a man and a woman, each with different backgrounds, they like it.”
Don states that one way to market co-mediations is to distinguish co-mediation from other types of mediation. “Others are really mediated settlement conferences. I’m not knocking them, Don says, “but they’re so locked-in on what the courts would do rather than what is best for the parties. I see the other mediation being limited in what they can do.” David Richbell shares the belief that the more we co-mediate, the more familiar the public will be and the more demand there will be for this type of mediation. Interdisciplinary co-mediators may be able to create a demand for co-mediation by educating the consumers, that is: educating the judges, attorneys and the public in general by example, by word of mouth, through marketing and public announcements.
Perhaps we can start with the Dispute Resolution Centers and mediator organizations. Perhaps this article will help start the movement towards more frequent use of disciplinary co-mediation nationwide. One can only hope.
ABA Section of Dispute Resolution, Resolution on Mediation and the Unauthorized Practice of Law (Adopted Feb. 2, 2002), http://www.abanet.org/dispute/resolution2002.pdf (last visited June 1, 2008).
Lisle Baker, Using Insights About Perception and Judgment from the Myers-Briggs Type Indicator Instrument as an Aid to Mediation, 9 HARV. NEGOT. L. REV. 115 (2004);
Department of the Navy Mediation Certification Program, Mediator Certification Process: Workplace Disputes, http://adr.navy.mil/adr/mediacert.asp (last visited June 1, 2008). Jonathan A. Beyer, Non-Lawyer Practitioner: Practicing Law at the Margins: Surveying Ethics Rules for Legal Assistants and Lawyers Who Mediate, 11 GEO. J. LEGAL ETHICS 411 (1998).
Carrie A. Bond, Note, Shattering the Myth: Mediating Sexual Harassment Disputes In the Workplace, 65 FORDHAM L. REV. 2489 (1997).
Beth M. Erickson, Therapeutic Mediation: A Saner Way of Disputing, 14 J. AM. ACAD. MATRIMONIAL L. 233, 254 (1997).
Rita L. Gitchell & Andrew Plattner, Mediation: A Viable Alternative to Litigation for Medical Malpractice Cases, 2 DEPAUL J. HEALTH CARE L. 421 (1999).
Christopher Guadagnino, Malpractice Mediation Poised to Expand, http://www.physiciansnews.com/cover/404.html (last visited June 1, 2008).
Prudence B. Kestner & Larry Ray, THE CONFLICT RESOLUTION TRAINING PROGRAM (Leader’s Manual) 220 (2002).
Jerome Lerner, The Rush Initiative for Mediation of Medical Malpractice Claims, 11 CBA REC. 40 (1999). Daniel E. Louis, Challenges in Multiparty Environmental Mediation, 19 J. NAALJ 77 (1999).
Leila P. Love & Joseph B. Stulberg, Practice Guidelines for Co-Mediation: Making Certain That “Two Heads Are Better Than One,”13 MEDIATION Q. 179 (1999).
Carrie Menkel-Meadow, Is Mediation the Practice of Law? 14 ALTERNATIVES TO HIGH COST LITIG., 57 (1995).
Diana Mercer, Co-Mediation: The Tug of War Between Product and Process, http://www.peace-talks.com/what.php (last visited June 1, 2008).
Forrest S. Mosten, THE COMPLETE GUIDE TO MEDIATION: THE CUTTING EDGE APPROACH TO FAMILY LAW PRACTICE 165 (1997).
Jacqueline M. Nolan-Haley, Non-Lawyers and Mediation: Rethinking the Professional Monopoly from a Problem-Solving Perspective, 7 HARV. NEGOT. L. REV. 235 (2002);
David Richbell, Co-Mediation, http://home.btconnect.com/davidrichbell/Papers/files/page7_2.pdf (last visited June 1, 2008).
William Ury, GETTING PAST NO: NEGOTIATIONG YOUR WAY FORM CPONFRONTATION TO COOPERATION (1991).