2 min read
Co-Mediation a Key Tool for High Conflict Clients

I have always been an advocate of co-mediation, having been brought up to understand the value of family mediators working together to share their distinct professional backgrounds for the benefit of clients.  Thus, an experienced family lawyer working with an experienced couple therapist (in their capacity as mediators) would help clients ‘uncouple’ at both an emotional, material and practical level, no matter what the level of conflict was.  The shared experience of the mediators would also provide ongoing learning and mutual appreciation, enabling them to conclude the case stress free (‘a problem shared is a problem halved’) and minimise complaints.

Unfortunately, this ‘Rolls Royce’ model of mediation faded at the turn of the century, as those practising Legal Aid funded mediation were greatly discouraged during audits from continuing this practice.  It was the view that an LAA contracted service would have to provide clear evidence why co-mediation was justified against a very narrowly defined list of reasons, or face financial ‘claw-backs’.  This struck fear amongst suppliers who then shied away from the genre.  Those operating in the private sector also recognised they could benefit financially as a solo mediator and have fewer logistical arrangements to contend with.  This, in turn, appealed to a cost-conscious public who would query why two mediators were necessary and invariably focus on price rather than value.

The past decades have seen greater pressure placed on the mediation community, with an increase in high conflict cases and greater expectations on mediators.  Stress is becoming a word more commonly amplified by both inexperienced and experienced mediators.  This arises from exposure to high and sustained conflict and can be quite toxic.  Like osmosis in chemistry, such conflict can penetrate the human psyche almost imperceptibly.  By the time many mediators start expressing personal concern they are at risk of approaching burnout.

Working alongside colleagues can take some of the intense personal and professional pressure off which, in turn, can enable greater creativity.

Co-mediation models include:

  • Mediator with novice: The novice mediator may learn from seeing someone experienced operate and may be invited to deliver carefully defined tasks.
  • Mediator with a specialist mediator: The case mediator may bring in a mediator who is a specialist in children’s issues (such as a child inclusive mediator) or in complex financial matters.
  • Mediator with a specialist communication mediator: The case mediator may require a mediator who specialises in developing communication and who may be more provocative and interventionist.  Both mediators may, in the sessions, discuss openly with each other in front of the clients, their considerations and perspectives - which can provide useful modelling for the observing clients. 
  • Mediator with a ‘watch & catch’ mediator: In this case, the mediator may require a colleague to help ‘bail them out’ and/or observe the dynamics and provide feedback as necessary.  Sometimes the presence of another is desired just for reassurance.
  • Mediator with a practical assistant mediator: Where defined tasks are required, such as note taking and diagram construction - enabling the case mediator to focus on the conversations.
  • Mediator with another mediator to balance the gender of the clients:  Important where control issues and abuse are raised at the assessment.

In all co-mediation scenarios, it is vital that mediators are clear on agreed roles and tasks, also the signals for interventions, breaks and timings.  It is imperative they take sufficient time to brief and de-brief, be open with each other, to develop critique and, subsequently, mutual trust.

Overall, I believe there is great scope for co-mediation to be re-evaluated by all concerned in the field, particularly in the current climate, for the benefit of both mediators and clients.  In a future blog (and through the provision of a case example), I will focus on how effective co-mediation can help mediators understand the unconscious dynamics of clients in the mediation room, and by doing so assist the very same to reach agreement in a property & finance case.

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