Tue 26 May 2015

Two Heads are Better than One: On Co-Mediation Part III

Posted by Heverton.Oliveira

The practice of mediation can be a lonely one. 

We work with parties and their counsel, but our relationship is only for the resolution of the immediate issues.  We seldom receive feed-back from the parties or their counsel about our performance.  For most of us, the last time we were observed practicing our craft by an outside observer, was when we participated in role plays at courses we completed from time to time, or when we originally qualified for our mediation training requirements.

The Mediate BC mentoring program has provided me with a unique opportunity to work with two associate mediators, co-mediating Legal Services Society (now Legal Aid BC) referred parties through the (then) LSS Referral Program.

The associate mediators have both completed all the required course work for membership on the Mediate BC Family Roster, and the mentoring program provides them with the opportunity to complete the required number of mediations.

In total, my associates and I have completed six sessions of co-mediation.  In each case the presence of two mediators in the room seemed to bring down the emotional tone, and put the parties at ease more quickly.  The room feels more like a team effort, rather than parties versus the mediator.  My style in a mediation tends to be transparent, and the existence of a colleague facilitates that style, as we can dialogue openly about our concerns and curiosity as the process unfolds.

Family mediations come with their particular challenges.  The parties are often sensitive to their situation.  They will tell the mediator that they do not have much hope of settlement because of the history of the dispute to date.  Because of their sensitivities, it is imperative that the parties consent to the co-mediation, and the co-mediator.  I talk to the parties and give them the background of my co-mediator, and the reason for the mentoring relationship.  I make it very clear that the decision to allow the co-mediation is entirely theirs, and that nothing hinges on their refusal to consent.

With both associates, our different personalities aid the process.  Where I might push a party who is being positional, and wear my “big daddy” hat in doing so, my associate will quickly jump in with an empathetic statement that makes the confrontation go more smoothly , and helps the party to get in touch with his or her interests.

To the concern I have heard expressed that I might be qualifying my future competition, my personal response is that the real problem with the mediation process in smaller centers is not that there are too many mediators, but that there are too few.  Thirty years of mediation experience has taught me that the future of mediation depends on the public and the legal profession seeing mediation as an integral part of dispute resolution.  That requires a trained cohort of mediators.  The Mediate BC mentoring program is aimed at developing that cohort.

Co-mediation is not always practical, and could, if done all the time, possibly add more cost to the process.  But where it is available, it is a comfortable and enjoyable way to conduct a mediation.

This post also now appears on justfamilysolutions.ca.

Part IV of the "On Co-Mediation" series is written from the perspective of a Civil Roster mediator and experienced mediation mentor through multiple programs throughout Canada.

Introduction | Part I | Part II | Part III | Part IV | Part V | Part VI | Part VII

Today's guest blogger is Ronald J. Smith, K.C., a Mediate BC Family Roster mediator and a Lead Mediator in Mediate BC’s Family Mediation Program. Ron keeps a busy family dispute resolution practice in the Okanagan, justfamilysolutions.ca.

[Editor's note: Many of the posts in this series refer to the personal experiences of the author. When considering applying to a Mediate BC Roster, please be sure to review the requirements at mediatebc.com.]

Photo by Yannik Sauerwein on Unsplash