by Robert S. Glenn Jr.
A colleague called me a few years ago seeking a referral. He was looking for a mediator with a rather unique set of characteristics. The mediator should be able to speak Portuguese, be familiar with contracts of affreightment (have drafted them, if possible), be familiar with English arbitration and English law, but not be a London solicitor. Try as we might, we could not find a mediator who met all of those requirements. This request is illustrative of the maturation of mediation as a technique for resolving maritime disputes. Where once a party seeking a mediator in a maritime case might have been satisfied with someone who knew that ships could be arrested, now counsel are adding layers of expertise and experience as prerequisites to agreeing to a mediator. This tendency can create an impediment to the parties' willingness to mediate.
Another difficulty that arises in maritime cases is that often the most substantial cases involve multiple parties. Multiple parties (and counsel) can create additional hurdles on the track to mediation. Will all the parties and their underwriters agree to mediate? Will all the parties and their underwriters agree on a mediator? Will all the parties and their underwriters support to the same extent the principle that someone with authority, the true decision-maker, should be present at the mediation? Will the parties be able to schedule a day or two when all counsel and party representatives can be in the same location to mediate? Can a mediator effectively work with seven different parties to resolve their claims? The purpose of this paper is to suggest that co-mediation is a technique that can resolve both dilemmas: the search for the suitably qualified mediator and the challenge of multiple-party mediations. I will define co-mediation, both as it is traditionally understood and with a twist which I have advocated on previous occasions. 3 We will then consider some of the challenges of multi-party maritime cases and how co-mediation serves as a method for addressing those challenges. Simply speaking, co-mediation involves the use of two (or more) mediators to conduct mediation. Co-mediators could be useful where a broad range of knowledge and skill is required for resolution of the dispute. It could also be helpful in cases involving numerous parties, as we shall see. There are no rules or guidelines that I know of governing co-mediation. The requirements of confidentiality, privacy, good faith and representatives with authority would be the same with any number of mediators. [footnotes omitted]
Access the full version of this article with your lexis.com ID. Additional fees may be incurred.
If you do not have a lexis.com ID, you can purchase this commentary and additional Emerging Issues Commentaries from the LexisNexis Store.
Lexis.com subscribers can access the complete set of Emerging Issues Analyses for International Law the and the International Area of Law page.
For more information about LexisNexis products and solutions, please connect with us through our corporate site.