Co-Mediation – A Potential Tool for Cross-Border Commercial Disputes

Co-mediation – the process of using more than one mediator – is regularly used in community mediation and as a training tool for mediators to learn from one another. It can also be highly useful in cross-border commercial disputes.

The following factors should be considered by parties and their legal counsel who are thinking about mediating such a controversy:

Potential Benefits:

• If two languages are involved, one mediator can be fluent or a native speaker in each language.

• If the parties’ legal systems are substantially different or if the parties are accustomed to mediation styles that are particular to their respective legal systems, one mediator can be from each system, so the differences are factored in when considering the mediation process and format and various potential solutions to the conflict.

• If cultural differences have been one of the causes of a breakdown in trust between the parties, having one mediator from each culture may allow the parties to hear and understand that those differences aren’t necessarily from lack of trustworthiness. 

• In fact, co-mediators can offer balance of perspective and experience based on all kinds of attributes that may be relevant: gender, personality, culture, and professional background or legal expertise.

• If the case is complex or involves many parties, co-mediators may be able to manage the process better and potentially more efficiently. 

• Mediation can be long and tiring.  Co-mediators, through tag-teaming, can help keep the focus and energy level of the mediation optimal.

• If a party is having difficulty coming up with options for settlement, co-mediators may be able to offer differing perspectives and help a party think of new possibilities.

• If the parties are having trouble being civil with one another, co-mediators can set the tone of the mediation by modeling collaborative and respectful behavior.

• Co-mediation may mitigate the risk of there being a mis-match between the mediator’s and a party’s personality or attitudes (or even missteps by the mediator that alienate a party) – the co-mediator may be able to build rapport and keep the mediation moving forward, nonetheless. 

Potential Detriments:

• Co-mediation costs more because the parties are paying for two or more mediators.If the co-mediators have different styles they might disagree on how to approach the mediation, delaying the process.  

• If the co-mediators use different mediation processes, they may not agree on how to proceed. It is vital that the co-mediators have either mediated together before or commit to discussing these issues ahead of time, to keep the mediation on track once it is started.

• Co-mediators may get distracted with their own differences, instead of staying focused on the parties’ dispute.  This should only be temporary and can be avoided if the co-mediators are experienced and have completed adequate planning and coordination before the mediation begins.

• Co-mediation may be less efficient if the co-mediators have to confer a lot between themselves due to the complexity of the case.

Whether a particular dispute is suited to co-mediation will depend on the specifics, but any party dealing with a cross-border commercial dispute should consider it as potentially useful option.