Co-mediation: Harnessing the Best of Two Worlds.

Factors for an enhanced mediation.

Claude Amar , SIMI Certified Mediator, and Garance Goujard, are co-founders of a French mediation chamber, Mediation & Resolution. In this article, reproduced with their permission, they share their perspectives on how co-mediation can contribute to an enhanced mediation session. This article was first published in French in Open Lefevre Dalloz on 16 May 2023 under the title (translated) "Co-Mediation: An Augmented Mediation".

What are the factors in co-mediation that will contribute to a good outcome for the mediation session, and why?

Firstly, there must be harmony, both between the mediators, and between the mediators and the parties to the mediation and their counsel.

Apart from knowing each other well, co-mediators must know each other well enough to understand each other easily (Inside Out, Towards the Other. How conflict professionals can use introspection to help their clients, by Gary Friedman, published in 2017 by Medias & Mediations). They need to be able to pay attention to each other, without detracting from their attention to the parties in a mediation. This complicity is a key element of the co-mediator relationship.

The personalities and mediation styles of co-mediators should be compatible and ideally complementary. This will offer the mediation process a much wider range of emotional receptiveness and analysis of exchanges, including non-verbal ones, than a single individual can provide. Having two mediators allows for greater opportunities to rephrase and re-frame the issues and in some instances, may also allow for helpful interplay between the two mediators to uncover the real interests between the parties. Two heads are always better than one, and two mediators will be better placed to receive and analyse a broad spectrum of data and potentially develop a larger number of ideas, which are the building blocks of solutions!

An illustration of this point can be found in construction disputes, where it is common to have representatives, as well as their legal counsel, from the project owner, the project manager, the architect, the managing agent, the co-owners, the tradesmen, the design offices, the inspection offices, the insurers etc involved in the mediation. In such a multi-party mediation, when one mediator is attending to one of the parties, the other mediator can more freely observe the reactions of the other parties, ask for clarifications and assist them, if necessary, to formulate a point. This benefit of having co-mediators is also valuable even if there are few opposing parties as one mediator is able to take notes and watch the proceedings objectively while the other mediator is addressing the issues.

This collaborative model between co-mediators, working together and alongside the parties and their counsel in the search for solutions, can help to foster cooperation between the parties and widen the scope of solutions.

Secondly, we recommend a diverse team. In a team with a man and a woman, each party can have a choice of communicating with the gender they are more comfortable with, whether it is a mediator they have the most affinity with or for whom they have the most respect.

It may also be advisable to select co-mediators based on geographical or ethnic origins, or religious affiliations, depending on the parties involved. In the case of mediation between individuals or legal entities from two different countries, a co-mediator from each country could avoid or reduce any misunderstanding linked to language and/or culture.

The creation of such teams with co-mediators has recently been facilitated by a cross-recognition scheme by member associations of the Alliance of Organisations for Mediation Standards (AMS). This scheme enables a mediator certified by one member organization at a certain level to apply for recognition of their qualification by other member organisations across France, Singapore, Malaysia, Hong Kong SAR and Portugal. More jurisdictions will be covered as more global mediation organisations join the Alliance.

Finally, the need for domain knowledge and technical skills may require the involvement of a co-mediator. When dealing with highly technical disputes, it is preferable to have 2 mediators who, without necessarily being experts in the field, have a grasp of the technical considerations so that no avenue of resolution goes unexplored. For similar reasons, it may also be useful to form a technical and legal duo. From our years of practice, we have come to recognize that having knowledge of the specific issues involved in the dispute will help to establish a climate of trust and encourage open conversation during the plenary sessions.

Other benefits of co-mediation include the sharing of tasks, real synergy through having additional resources and energy (two brains instead of one and, above all, four ears instead of two!), and more effective and intensive preparation thanks to the skills brought together by two mediators.

During meetings, the presence of two mediators helps to create more links with and between the parties and their counsel, thanks to informal exchanges that often enable them to connect with each other through a common point or a shared area of interest (age, gender, hobbies, expertise, etc.).? Each mediator can take a caucus with the appropriate individual disputants and their counsel, resulting in richer, more dynamic exchanges.

During a mediation of a dispute concerning a multi-year building site, we had planned for a one-day meeting, which included lunch together. During the lunch, one of us sat at the table with the operational staff, while the other sat with the managers of the three companies involved in the dispute. When we did a debrief, we discovered different versions of the same story! There was the story that each staff member felt obliged to tell in front of his manager, and the story that each told more freely (to us) during the meal. The information we had gathered enabled us to ask them clarification questions at the appropriate moments during the afternoon session. We had saved time, and after feedback from a technical working group, it required only one more plenary meeting to reach an agreement.

One concern that parties may have is the cost of co-mediation. While it may not cost twice as much, nor cost the same as having only one mediator, the advantages of co-mediation as we have highlighted in our article allow us to say that co-mediation resolves disputes more quickly, covers a greater part of the dispute and its cohort of unspoken issues, and provides an enhanced service, for a solution that is even more complete.

Editor’s note: As a member of the Alliance of Organisations for Mediation Standards, SIMI-accredited mediators (Level 2 and above) can apply for cross-recognition by AMS member organisations in France, Hong Kong SAR, Malaysia and Portugal. This will allow them to be accredited at an equivalent tier of accreditation with other member organisations and create avenues to co-mediate disputes with mediators from different Alliance members. For more information about this cross-recognition scheme, please click here .

About the authors

Garance G. is an environmental engineer and a lawyer specialising in property, construction and town planning. A court-appointed expert and mediator before more than fifteen French Courts of Appeal, she held various positions in a major construction group in south-east France for ten years, before setting up her own independent consultancy, expertise and mediation business in 2010. Trained in mediation at the University of Avignon and then Harvard Law School, she is a full-time mediator with Mediation & Resolution, which she founded with Claude Amar.

Claude Amar is an architect and hotel developer. He studied mediation at the Center for Mediation in Law in San Francisco and attended the Program on Negotiation at Harvard Law School. He is accredited by numerous international mediation institutions and is regularly appointed by the French courts. More than 20 years of professional experience as a mediator has enabled him to be highly creative when seeking solutions 'outside the box', and has contributed to his recognition as a Global Elite & Thought Leader for mediation in France by Who's Who Legal since 2020.