I write this blog based on my personal experience as a co-mediator, having taken part in significant levels of commercial mediation over the last year. Topics have covered a wide variety of business disputes, including commercial lender/commercial developer; power utility contracts; commercial agency contracts governed by EU legislation; partnership disputes amongst doctors and schedules of dilapidations. People argue about everything, it’s part of human nature – in the genes, you might say!

I have been fortunate to have co-mediated with a very experienced female commercial mediator (previously a highly experienced solicitor, as I am), who is a leader in this field; and my experience of having one female mediator and one male mediator has been very positive. We have co-mediated commercial disputes where there has been a mixture of men and women in the negotiating teams on both sides; and also in situations where the negotiating teams on both sides were all male. The dynamics are different – but the presence of a mixed female/male mediator team provides clients with the opportunity to be understood, validated or challenged by mediators of either sex which may help avoid stereotyping.

The presence of two mediators can enable them to take different roles, which can be exchanged, with one being more supportive and the other more confrontative. This has happened; and the roles have also been reversed!

There is a lead mediator – it is ‘someone’s show’ – but the approach taken by co-mediators is a team approach and the behaviour between co-mediators is cooperative and supportive. Such behaviour is evident to the clients on both sides and in my view, is good modelling behaviour. It helps move clients from a more astringently adversarial approach, towards a more cooperative form of negotiation, without clients losing sight of their own competitive interests.

How does it work?
A significant amount of work is done in pre-mediation by the lead mediator – setting out the terms of the Agreement to Mediate, including the all-important requirement for confidentiality amongst parties re matters disclosed, and adjusting this to ensure all parties’ satisfaction. For many, this includes an education on what mediation actually is, how it works and what is involved. This process enables parties to get to know the mediator, and develop rapport and trust with her, but also helps them to understand the mediation process. This culminates with both parties providing a Mediation Statement, setting out concisely their assessment of the dispute from their own perspective based on their assessment of evidence. In addition, both parties disclose to each other the evidential documentation and legal pleadings on which they rely, against the background of knowing these commercial disclosures are confidential.

The lead mediator also discusses with parties who needs to be at the mediation and inevitably this includes clients, their legal advisers and appropriate expert witnesses who commonly include amongst others, chartered surveyors, forensic and tax accountants. The process is one which requires to be undertaken in good faith. There should be no surprises at the mediation re personnel or documentation.

Both the lead and co-mediator will read the documentation provided in advance of the mediation – to make sure they understand the nature of the dispute and differences between parties. A failure to do so would be evident to both parties and would inevitably undermine their faith and trust in the mediators. This can be something that requires many hours of the mediators’ time. There were over 700 pages of evidential documentation, expert reports and legal pleadings in the first commercial mediation I took part in – with significant differences identified between each sides surveyors and accountants – a failure to identify these differences would have been self-evident.

The digestion of the pre-mediation documents by the mediators separately, and the identification of parties, their advisers and experts who should be present, enables the mediators together to identify what issues are likely to arise and what needs to be discussed. Additionally, they decide how to ‘set- up’ the mediation room for joint sessions, usually to ensure that clients mirror image each other, but also to ensure appropriate placement of people in terms of their importance and precedence. I took part in one commercial mediation with eight people on each side, together with two mediators, a total of 18. The main players have to be in relatively close proximity. Not only do mediators have to manage the process, they also have to manage the people – this can be like herding cats! Difficult enough for one mediator working alone and much easier for two.

Discussions between the mediators and the senior representatives of each client identify which people need to take part in which conversations to discuss which topics. There are often meetings involving small groups from each side, usually with both mediators present. Sometimes co-mediators simultaneously, will meet with different groups of people from both sides, to mediate over different aspects of the dispute, before reconvening together. This is something I have participated in. The presence of two mediators enables the dispute to be broken down into bite sized chunks – making it easier to manage.

As well as a joint meeting room for all – there will be separate private meeting rooms for each side to go to – and there will be private caucus meetings between mediators and one client to the exclusion of the other. There can often be shuttle mediation. However, anything disclosed by clients to mediators in these private caucus meetings will only be shared by mediators with the other client, with express permission of the first, thus maintaining confidentiality.

Clients will often want to have private discussions with their own advisers. This provides both mediators with the opportunity to meet alone in mediator caucus to assess what has been disclosed; what direction is being travelled; and to share insights with each other. Sometimes one will pick up information or nuances that the other has not enabling private sharing, discussion and assessment between them. It enables the mediators to plan strategy – who do we need to speak to next, what questions do we need to ask of whom; and what obstacles remain?

In these meetings, one mediator will usually chair or lead conversations between parties and the other will make notes, listen and observe clients’ behaviour, body language and often note specific words or phrases used. This enables both mediators to review those notes. In some mediations, particularly where there is a personal exchange between client protagonists with both mediators present, or where there is expert evidence exchange and dialogue with mediators and legal advisers present, mediators can be asked to summarise to one party or the other what has been said – from verbatim notetaking.

Usually at the end of each session, the lead mediator will ask the co-mediator if there are any further issues/questions arising – this enables an opportunity for anything that has been missed, or additional material that has been adduced to be further queried. This does inevitably happen – we don’t all remember everything – but such additional questions are framed very carefully – again requiring trust and respect between mediators. It also allows the development of slightly different approaches by each mediator – with one being more supportive, and perhaps the other asking more penetrative/confrontative questions – usually beginning with ‘I don’t quite understand this’ – in response to which one solicitor once said to me- ‘here comes the bear trap!’.

An issue that is sometimes expressed about co-mediation, is whether or not the co-mediators are compatible, and this is a fair concern. In my view compatibility arises at two levels, personal and professional. There has to be good personal regard and respect between mediators – if you don’t like each other – you’re not likely to be able to mediate well together. The personal regard is also based, at least to some extent, on a perception of each other’s professional skill and knowledge. The female mediator I have worked with was a solicitor for 18 years before working as a commercial mediator for the last 18 years. I have practised as a litigation solicitor since 1993. My co-mediator once said of me, that I thought the same way as her – I think that is at least in part informed by our previous common experience as litigation lawyers. I am not advocating for any requirement that commercial mediators should have a background in law, but it certainly helped in the bond with my co-mediator. She felt that I understood, as she did, the language and writing being used by the disputees and their representatives – and that I was comfortable in that arena.

Commercial mediation can last many hours and requires great concentration, as well as patience and humour. It can also be stressful for all – clients, their legal advisers, experts and mediators. The old adage – two heads are better than one – is a truism in the co-mediation of commercial disputes. It helps to know your co-mediator has got your back!

Posted by Paul Kirkwood, a Commercial Mediator who has also practised as a litigation solicitor for 24 years. He is a director of MNCRS (www.mncrs.co.uk) Mediation, Negotiation and Conflict Resolution Services.