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.