While people’s definitions of mediation may vary, the underlying purpose of mediation is simple: to resolve the dispute between the parties. That is, to settle the case. That means that as a mediator, you’re being paid to settle lawsuits. To do so effectively, you may start preparing well in advance of the mediation. And in some cases, you may want to consider bringing on a co-mediator.
What types of cases may benefit from having a co-mediator? What should you consider when you work with one? Here are some thoughts on how to determine whether to use a co-mediator, and the value he or she can bring to the table.
A Case Study of Co-mediation
I first worked with a second mediator in a case about 15 years ago. Approximately 180 homeowners who had access to a 200-ace lake sued 23 different developers and property owners who had developed a very large upstream watershed, alleging Clean Water Act violations. As the surrounding area was developed, the watershed was affected, and the lake began to fill up with silt.
While the nature of the case wasn’t complicated, the sheer number of parties made the idea of a second mediator appealing. While I knew we’d need at least two days to mediate, I suggested having two mediators to reduce the overall mediation time.
We had 180 different plaintiffs, so one of our first priorities was to help them get organized. Before the mediation, the plaintiffs’ counsels had the plaintiffs elect and give authority to six members of the homeowners’ association who would represent and speak for them and bind them in any mediation.
Once we had the committee elected, we began reaching out to the defendants’ counsels, discussing ways to best prepare and organize the defendants. This was done primarily through a series of conference calls but also included in-person meetings. Through these efforts we identified one of the lead defense attorneys who was instrumental in getting the defendants organized.
We also began preparing a draft of the settlement memorandum well in advance of the mediation. After we had agreement on the defense’s side, we presented the memo to the plaintiffs. This led to a series of conversations and drafts that culminated in an agreed settlement memo prior to the mediation. The only issue at mediation was money.
After we had all the ground rules in place, we met and mediated the case. We rented space that included one very large room for the openings, a large room for the plaintiffs, and then separate rooms for the defendants.
The case had several “major” defendants and many smaller ones. As the mediation progressed, one of the main defendants agreed to put in a sizable amount to settle the case, but that was dependent on two groups of the other defendants matching the number. I had my co-mediator working with the minor defendants to see if they could come up with their challenge number while I was working with the other major defendants to come up with their challenge number. That gave us a large negotiating pool. While we weren’t going to offer all the money at the same time, once we knew we had a certain amount to settle, we were able to move quite expeditiously.
In this case, a co-mediator saved a significant amount of time. The value to the parties was clear — between all the attorneys’ fees, executive time, salaries for the claims professionals, and mediator fees, we were probably spending $20,000 an hour, and having a second mediator (at a rate of $700 an hour) saved us at least four hours of time. To paraphrase Bob Dylan, “it doesn’t take a math major to see which way the dollars flow.” Over the two-day period, the co-mediator saved the parties approximately $65,000.00.
Considering a Co-mediator
Yet I’ve only used a co-mediator in a handful of cases. Some were class actions that involved multiple defendants and we used a co-mediator who worked with the parties in a similar fashion to the way we worked with the above case. In another case with six or seven plaintiffs, the parties agreed to a co-mediator to help reduce the wait time.
Different factors that could lead you to consider using a co-mediator. The number of parties involved. The size and complexity of the case. Parties with special considerations. However, the principal one is whether having a co-mediator returns value by saving significant amounts of time — and potentially leading to a greater potential for settlement.
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