ABOUT CO-MEDIATION AND MULTIPLE-MEDIATION
In more complex construction cases, co-mediation and multiple-mediation have gained increased popularity in the ADR arena over the past few years. On larger construction cases, there are often multiple parties involved in the dispute or there are many complex technical issues involved in a two-party or multiple-party dispute. It is a recognized fact in the construction industry that if a mediator has technical knowledge of the major issues involved in the dispute, there is a greater chance that the mediator will be able to bring the parties together to reach an amicable settlement. If the case involves both construction issues and legal issues, having at least one construction expert and an attorney who is familiar with the legal issues involved will most likely offer a better team of mediators than a team of just construction or legal ADR experts. Those of you who are familiar with single-arbitrator and tri-partite arbitrations should realize that tri-partite arbitrations are utilized to offer the combined knowledge of three arbitrators. Co-mediation and multiple-mediation is based on that same reasoning. Unlike tri-partite arbitration; in mediation, the mediator(s) have direct and personal contact with the parties, and when the mediators and the parties have similar characteristics and knowledge, the mediator(s) can develop a rapport that facilitates a more amicable discussion and often brings a more successful outcome to the mediation.
Co-mediation, involving two mediators, and multiple-mediation, involving more than two mediators, are generally utilized to handle two different types of mediation cases. The first type of case generally involves only two parties to the dispute. Those two parties may have multiple claims and counterclaims that involve several different construction-related technical issues and or legal issues. Two or more construction-experienced mediators each with very different construction backgrounds who possess very different construction-related expertise and/or a mediator with a legal background should be far more effective in assisting the parties to come to a fair and equitable settlement on those various construction and/or legal issues.
The second type of case where co-mediation and multiple-mediation should be utilized is the multiple-party mediation. When there are three or more parties involved in the dispute, through the use of specialized mediators, two or more caucuses can be going on at the same time rather than having to wait until the single mediator has concluded a caucus with one party and then can go to the second party, third party, etc. Although the parties generally understand the mediation process, they do not like to sit around and wait while the mediator talks to another party. With multiple parties, it becomes more of a problem if a single mediator has to handle multiple parties and multiple caucuses.
Co-mediation and multiple-mediation are not as simple as they seem. There is a great deal of thought that needs to go into the proper handling of the mediation. There is more preparation necessary to prepare for a multiple issue or multiple party mediation then is required to prepare for a standard mediation. Although there is no “right” way to conduct a co-mediation or multiple-mediation, we will discuss some of the most common methods that mediators use to conduct these more complex mediations in the following paragraphs.
In co-mediation, there are generally two procedures that are followed. Both mediators may work with both or all parties or each mediator may be assigned to work specifically with one or more specified parties. Where there is more than one mediator, it is important for one of the mediators to be designated as the lead mediator in the event that the mediators may have differing opinions as to how to proceed with the mediation or if there are any other differing opinions between the mediators. When both mediators work with both or all parties, the two mediators always work as a team. They begin by first listening to the combined discussions of the parties in the opening joint session. When the parties are separated and individual caucuses are begun, the two mediators continue to work as a team and visit each caucus together. After each caucus, the mediators discuss what they have heard in the caucus and develop a revised strategy on how to handle the next caucus. This process continues as the caucuses continue. The mediators’ combined knowledge should provide an increased expertise and should help both the mediators and the parties to better understand the issues being discussed. At a point where the mediators feel that the parties should be brought together for combined discussions, the mediators will continue to work as a team. This team approach should be far more effective in assisting the parties to come to a fair and equitable resolution to their dispute.
In some co-mediations, it is advisable for the mediators to work independently of each other. If there are two mediators and one or both of the mediators has a similar background and expertise that is consistent with the background and expertise of a specific party, that mediator should be able to develop a special rapport and trust with that party. If each mediator has the opportunity to develop that special relationship with a specific party, the parties usually “open up” more to the mediator and share more private, confidential and intimate details concerning the dispute with that one mediator. It is very important that prior to the commencement of the mediation that the mediators have been given the authority to share any discussions between themselves as the mediators. Obviously, that information will only be shared by the mediators and not shared by the parties without the specific permission of the parties.
Multiple-mediation follows the same format as the co-mediation. The multiple-mediators may work together as a team, especially if there are a small number of parties involved, usually two or three parties. If there are four or more parties involved in the mediation, it is usually recommended that the mediators each work with one or more of the parties depending upon their similarities to the parties. It is not unusual for individual mediators to work independently with the parties and for them to be joined by another mediator when the issue being discussed in the caucus is the specialty of one of the other mediators. Mediation offers a flexibility that will allow the mediators to do just about anything involving the mediation process as long as the parties are aware that the mediators might vary the procedures as the mediation proceeds. The mediators will then get together after caucuses to discuss what was discussed in the caucuses and they will formulate their strategy for the next round of caucuses.
It is obvious that the dispute resolution process is more expensive when utilizing two or more mediators as opposed to utilizing a single mediator. As a result, the use of multiple mediators is not generally utilized on small dollar cases or when there are a limited number of claims and counterclaims involved in the dispute. If the use of co-mediation or multiple-mediation is not specified as an option in the construction contract, it is difficult, but not impossible, to get an agreement to use one of these processes after a dispute develops. Some construction contracts specify the use of multiple mediators when the number of issues is above a specified number or issues and/or when the dollars in the dispute go over a certain threshold and/or when there are more than two parties involved in the dispute.
As mentioned earlier, there is no right or correct way to utilize the co-mediation or multiple-mediation ADR processes. ADR offers the flexibility of processes that can be designed to facilitate an efficient, expeditious and inexpensive alternative to utilizing the legal processes that are available to handle disputes. Co-mediation and multiple-mediation are two of the innovative ADR processes that are available to the construction industry.