Earlene Baggett-Hayes and Joyce A.G. Mitchell
Co-mediation is a conflict resolution approach that has many similarities to the tango. The tango is a ballroom and social dance that originated in the 1880s along the border between Uruguay and Argentina. While the dance itself has three (3) basic steps, it is generally known for bringing people together, often as observers, as well as participants. It is a visual display of symmetry, consensus, purpose, and natural movement that evokes a spirit of excitement, adoration, and anticipation.
In 2004, Jennifer Lopez and Richard Gere starred in the movie, “Shall We Dance?” Most memorable of that movie is the tango they danced at its beginning. J. Lo and Richard performed the tango with the utmost dance skills, purpose, and non-verbal communication. Together and apart, but always in sync with the music, they exhibited long pauses, stylized positions, staccato, and smooth moves. They conveyed trust in each other as they executed their athletic moves. They “clicked.”
This article discusses the ways co-mediation is akin to dancing the tango. The writers explore when and how co-mediation may be used. It also addresses various aspects of the mediation process for co-mediators to consider. So, shall we dance?
Co-mediation is an approach, or one tool in the mediator’s toolbox which uses two or more mediators working in tandem to assist parties in reaching a resolution. Co-mediators accomplish this by creating an environment of cooperation, collaboration, and optimism about possibilities for resolution, forward-thinking, creative thinking, enthusiasm, and persistence.
The tango dance is performed internationally. It had been performed in numerous venues ranging from among slaves and lower-class people living in Buenos Aires and has fast-forwarded and expanded across all of Europe and North America. Likewise, co-mediation is used for resolving many different types of disputes. Suitable cases include employment, business, law firm or franchise dissolution, domestic relations, multi-party issues, insurance, agricultural, oil and gas, and environmental, to name a few.
Advantages of Co-Mediation
Richard and J. Lo are skilled and experienced dancers and sought to use their respective skills to put forth their best tango performance.
Using co-mediation has numerous advantages. It demonstrates teamwork between the mediators. The opportunity to utilize various approaches serves as a benefit in resolving issues. One of the co-mediators may be able to employ skills or knowledge of the subject matter or process that the other mediator does not possess. The same may be true in the area of interpersonal relationship skills. If there are power imbalances in the mediation session, co-mediation may be utilized to level the playing field or neutralize the variance. Co-mediation provides an opportunity to address diversity and inclusivity needs, whether they are based on age, gender, race, or other differences.
Multi-party and multi-issue disputes are especially ripe for co-mediation. Typically, co-mediation utilizes less time and is less costly, particularly because the co-mediators may plan the mediation in a way that allows them to either work jointly or separately. In a dispute which involves numerous issues, the co-mediators may focus on separate issues. The same is true if the dispute focuses on different parties within the group. Mediators may simultaneously work on issues which decreases the amount of waiting time parties typically spend while the single mediator is talking to other participants. This use of co-mediation translates into the mediation participants saving both time and money.
Co-mediation provides the mediators with opportunities to rescue each other and invoke effective strategies during the mediation should the need arise. Certain tasks such as note-taking, timekeeping, participant accommodations, etc., can be relegated to either mediator, providing additional organization to the process and causing less time to be expended, and minimizing any confusion.
While co-mediation is not typically viewed as having disadvantages, it is important that co-mediators work in sync and avoid utilizing conflicting approaches. They must be able to work together effectively. If their involvement presents drastically different approaches, a conflict between them, unnecessary duplication of effort, or competition between the co-mediators, the goal of resolution will not likely be accomplished.
Co-Mediation Approaches
J. Lo and Richard may perform the tango in many ways. Either partner may take the lead.
There are various approaches to co-mediation. One approach is to have co-leaders where both mediators are “in charge,” but have a clear plan in place to handle issues that may surface between them. Another approach is to have a lead/assistant co-mediation. In this approach, a lead mediator is in charge and an assistant participates. The assistant may serve either of several roles. The assistant may observe or marginally participate as a trainee or a mentee. An assistant may also serve as an expert on a particular topic. In those situations, the expert assistant mediator may be utilized during the process to explain certain points or ask various questions yet remains neutral throughout the process.
Identifying a Co-Mediator
Richard and J. Lo recognize the compatibility of their skills and act upon them.
Selecting an appropriate co-mediator is critical. Mediators should seek out partners whose strengths will complement each other. For the sake of the mediation, there may be a specific age, gender, race, affiliation, cultural or other considerations to be made. Certain expertise, reputation, or types of experience may be beneficial. Other skills that may be sought are subject-matter expertise, negotiations, communications, and general interpersonal relationship skills.
Once a mediator has considered the attributes that may assist in creating a successful co-mediation, it is advisable to meet with the co-mediator to discuss varying styles, habits, comfort levels with dissension, expectations, and other topics. During this meeting, it is hoped the mediators will establish trust with each other. They should talk about any particular physical limitations or health concerns and check for potential conflicts. It is also advisable to discuss strategies for addressing conflicting approaches, deferring to caucus, addressing when either may be viewed as losing neutrality and how various impasse strategies. may be employed. The mediators should also discuss and agree upon availability, mediator fees, and formalizing a co-mediator agreement.
Designing the Mediation Process
J-Lo and Richard appropriately prepared for their Tango performance by discussing approaches, dressing appropriately, adjusting the lighting, and assuming the Tango position to stand ready when the music began.
Co-mediators should initially agree upon the mediation process they will utilize, whether it will be Facilitative, Evaluative, Transformative, or another process. Organizing their approach is key. The Mediators should examine division-of-responsibility opportunities. Depending on the amount of available information, and to the extent appropriate, the co-mediators should discuss the parties, their interests, special circumstances, court process (filings, time, discovery, legal issues), and other issues such as publicity, confidentiality, any social media or other publication concerns. The co-mediators should agree upon their respective roles, i.e., explaining the process, note taking, handling issues, switching roles, joint vs. caucus strategies, and timekeeping. They should address whether the mediation will be conducted virtually or in person. They should also develop a co-mediator communication plan and jointly draft and review necessary documents.
The Mediation Process
Let the Tango begin. Richard and J. Lo danced in sync, whether it was a fast or slow pace, dramatic or light-hearted, together or separately, professionally and passionately. Some dance strategies were repeated, others were not. They utilized the available space to glide across the room, maintaining eye contact as a mode of communication.
During the mediation, the co-mediators need to have a communication plan in place. This can be done in many ways. During a virtual mediation, a few ideas include having a separate break-out room for the mediators, having the ability to communicate effectively with all parties in the main room, or placing the parties in break-out rooms while the mediators meet in person or via cell phone. While similar approaches may be effective during in-person mediations, something as simple as moving a pen, using a hand gesture, discreetly writing a note, gently calling for a break, or standing up may be effective tools for communicating to a co-mediator.
During the mediation, co-mediators should feel free to follow the mediation process, but maintain flexibility based on the parties’ needs and the co-mediator’s needs. Mediators should listen carefully, observe the co-mediator for continuity, ascertain that both co-mediators are working together, and look to embellish upon ideas and options that are raised. Mediators should also remain on the lookout for mediator fatigue, missed cues, etc. Mediators should avoid interrupting, embarrassing, or contradicting the co-mediator. All concerns can be discussed privately. Remember, the parties observe the co-mediators’ interactions just as the co-mediators pay attention to those of the client(s). In this regard, the clients’ ability and willingness to work together may mirror the co-mediators’ demonstration.
After the Mediation
At the end of the tango dance, J. Lo, in very complimentary terms, said to Richard, “Be this way tomorrow ... Thank-you”
At the end of the mediation, if the parties have reached an agreement, the co-mediators assure that it reflects the intent of the parties, obtain appropriate signatures, provide signed copies, and thank the parties for participating in the process. It is advisable that the co-mediators discuss in advance how these functions will be handled and confirm the co-mediator roles. If the parties did not reach an agreement, the co-mediators should, jointly if possible, after thanking the parties for their participation, follow up with the non-settling parties.
The co-mediators should agree in advance upon each mediator’s role and the appropriate timing for follow-up.
The co-mediators should also conduct a debrief amongst themselves after the co-mediation. It is important for them to be open and honest with each other. They should share best practices observed, strengths and hurdles. It may be helpful and instructive to discuss interventions, the use of silence, addressing conflict, handling challenging parties, or other strategies that they experienced or observed. If one mediator has questions or would like additional information about the other mediator’s approach, it should be perfectly fine to inquire. The co-mediators may also want to discuss any learning take-aways, effective strategies, or other ideas that they gleaned from the mediation. The debrief is essentially a tool to further enhance the skills of each mediator. Feedback is crucial in this regard. The co-mediation should conclude on a positive note.
As a practical matter, it is likely that co-mediation is a process that will not work for everyone. Nor is it recommended for all cases. Those cases which are based on a single issue or a non-complex situation may not be conducive to co-mediation. However, sometimes where high emotions are involved, co-mediation may be helpful. Some mediators may feel that because they were chosen to handle a particular conflict, they are obligated to do so singularly. Other mediators may be more comfortable working independently. While these are all real considerations, the point of this article is that co-mediation is an effective mediation tool and does have a time and a place.
Thank you, Richard and J. Lo. “SHALL WE DANCE?”
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See Also: “Co-Mediation,” by Joe Epstein and Susan Epstein (2006). Alternative Dispute Resolution, The Colorado Lawyer/Volme.35., No. 6 (June, 2006).
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Earlene Baggett-Hayes is a mediator and arbitrator. She has a national ADR practice and is a Distinguished Fellow of the International Academy of Mediators (IAM). She is also a member of the Professional Resolution Experts of Michigan (PREMi, http://premiadr.com).
Joyce A.G. Mitchell is a mediator and arbitrator. She has an international practice and is a Distinguished Fellow the vice-president of the International Academy of Mediators (IAM)
