Co-mediation of thorny multiparty disputes: the advantages and practicalities
Mediation as a process is widely praised by judges and lawmakers for being able to resolve even the thorniest of disputes, often to the surprise of the parties involved.
Federal and state courts in Australia have the power to require parties to mediate, with or without their consent, under the Civil Dispute Resolution Act 2011 (Cth).
However, when there are multiple parties to a dispute the process can become complex and combative. A single mediator can be torn in several directions and the mediation can begin to feel like an impossible task.
In this article, two very experienced full-time mediators explore how co-mediation is being used to successfully resolve multiparty disputes and describe in detail how co-mediation works in practice.
The process of mediation
Many parties turn to mediation for a swift and cost-effective solution that draws a line under the animosity and allows everyone to focus on their personal and business interests rather than an expensive and lengthy litigation.Those involved in multiparty disputes will be keen to know that mediation is also available to them.
A mediation involves parties agreeing a mediator, a date to meet and a venue. Essential momentum is created by setting a timetable for exchange of information and a time-frame for the mediation meeting. The mediator will contact the parties in advance and can provide appropriate case management. A mediation agreement will be agreed and signed. Subject to limited exceptions, the mediation will be confidential and without prejudice so all can speak freely about what matters to them. On the day, the mediator will meet and speak privately with each party, convene joint meetings as necessary, create a strategy and seek to find a solution. Trust and rapport will be built by the mediator spending time with each party, understanding their needs and laying the foundations for negotiation.
As a process, mediation has the ability to flex and mould to suit the parties and their issues. One dispute may require certain people to meet or certain things to be said and recognised; another may only require the mediator to work privately with the parties, conveying information and offers. Some disputes will only resolve with a payment, while others will require a more involved solution, such as the provision of services. For some, an apology may be key.
A greater number of parties makes this process even more complex and lengthy, and even the fundamental step of the mediator spending time with each party becomes difficult for a single mediator to achieve. Even if the defendants recognise they need to work together to put a joint offer to the claimant(s), this will still always be a longer process than they anticipate. More difficulty will arise if one defendant wishes to maintain a differential between his contribution and that of another party, or insists his share is kept secret. The claimants meanwhile may be arguing about how any damages should be shared between them or, dangerously, just waiting and losing patience. Without co-mediation, the mediation of a multiparty dispute may begin to feel like an impossible task, with the single mediator torn in several directions.
Co-mediation of multiparty disputes
Being involved in multiparty disputes heightens risk. A greater number of parties naturally generates more documents, more issues and higher legal costs. Parties who wish to make offers may fear another party bringing them back into contribution proceedings.
Despite the involvement of multiple parties and perhaps as many as 70 attendees, to create essential momentum the mediation of a multiparty dispute will still take place within an agreed time-frame of usually one, or sometimes two, days. To allow this to happen however, the mediation process has to be considered in a number of ways.
Parties to multiparty disputes generally adjust the mediation process so that two mediators are jointly appointed as co-mediators. In doing so they recognise that where each party has numerous issues and needs, two mediators working separately and together can achieve more in the same time-frame.
Mediating a multiparty dispute often also requires the pre-mediation period to be adjusted so there is more intensive case management by the co-mediators.
Disputes involving more than two parties also require an adjustment to the standard confidentiality aspect of the mediation process. In a multiparty dispute one party may wish to discuss a certain point with three other parties, but only on the basis that those three parties do not share any part of that conversation with any other party. Multiparty mediations require all to respect this second tier of confidentiality.
The practicalities of a co-mediation
Once appointed, the co-mediators will want to speak with each party and understand their specific needs. They will want to know which parties want to talk to other parties. They may be able to put in place information exchange and/or expert discussions to enable the specific issues to be narrowed down.
They may, as we have done previously, ask parties to complete tables they have specially crafted. They may seek to establish who will make a first offer and whether that offer will involve any payment. To highlight issues, they may ask one party to circulate a draft settlement agreement for review. This may enable a group of parties to have frank discussions so they arrive at the mediation ready to negotiate.
By the time the mediation day arrives, the co-mediators will have developed their joint plan and know their separate and joint tasks. This may include attending an initial meeting of everyone together or heading off in different directions to tackle different conversations with different parties, groups of parties, or groups of attendees.
During the day the co-mediators will meet up to share progress and as the day continues, as ever, the process of mediation will flex and mould to suit the dispute in hand.
The increasing uptake of co-mediation demonstrates that parties to multiparty disputes do want to take advantage of the phenomenal benefits of mediation and will not be put off by the logistical challenges of bringing together so many parties.
This is an abridged version of an article which first appeared in the Australian Alternative Dispute Resolution Law Bulletin – March 2019 edition.
Rosemary Jackson QC, Keating Chambers, London. E: firstname.lastname@example.org
Elizabeth Repper, Keating Chambers, London. E: email@example.com