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Co-Mediation is a style of mediation that has been popular for over 10 years in major centers of the United States.

It involves multiple mediators, usually 2, whose professional skills are combined to enhance the quality of the mediation process, as well as its outcome.

Legal research and social science have shown that Co-Mediation can be done with little to no increase in the cost of the process, and can shorten the process saving time and resources. Many have observed that, in the typical multi-party case, the momentum of dispute resolution can be lost and even regress as parties sit in separate rooms in “dead time”, waiting for a single mediator to shuttle back and forth in caucusing. In Co-Mediation, mediators can work together, or addressing separate issues, each mediator works with the party, building upon the knowledge base of both, in an efficient and collaborative progression towards settlement.

Although there is more than one type of Co-Mediation, there is consensus that legal and industry experts work best together in multi-party cases involving catastrophic injury, wrongful death, professional liability and insurance related disputes.

In one example of the legal/industry expert team, the legally trained expert brings knowledge of the law and litigation to the table, which is combined with that of the industry expert in insurance, statutory benefits, life care planning and rehabilitation. Claimants, defence counsel and claims representatives alike appreciate the depth of knowledge brought to the table when navigating complex problems of insurance coverage, reserves, claimant future care needs, and deductibility of benefits.

Both mediators work hand in hand with the parties to tailor the process, before the actual mediation takes place, and together speed up the identification and exchange of party interests in the actual mediation to help the parties arrive at options for settlement. Co-Mediators can also facilitate effective follow up to full and final agreement among the parties.

The benefits of co-mediation are indisputable. Co-mediators help design the process, divide the work, confer during the mediation and add synergy to the process. They work together, engaging the parties in tandem, and communicate with the parties in a way that builds trust and momentum towards settlement.

Early Neutral Evaluation

Early Neutral Evaluation (ENE) is a process pioneered by the California courts in the early 1980’s with the goal of reducing litigation costs. Despite the popularity and widespread use of ENE in the United States, its use in Canada has been very limited.

ENE was developed in response to an all too common litigation reality in which parties fail to consider the weaknesses in their case, focus only on its strengths, and develop unrealistic ideas about the odds of success. Very often, a “reality check” comes too late in litigation, when an already taxed judicial case management system, including mandatory pre-trial conference, is offered only after the parties have run up significant costs in litigation.

ENE can provide the “reality check” for the parties before they become entrenched in their positions, and invest vast sums of time and money they cannot recover in the litigation process.

Research has shown that ENE is a mechanism best used at an early stage of litigation or even prior to litigation. Its main advantage includes opening up direct communication at an early stage, which enables early identification of core legal issues, timely narrowing of points in issue and discovery plans, and consideration of the strengths and weaknesses of each party’s case.  This avoids unnecessary costs of oral and documentary discovery and formal proof of admitted facts.

ENE is most often used as a prelude to mediation and arbitration. The neutral evaluator receives written statements from the parties along with relevant documents, and critical oral discovery or written statements. The neutral evaluator then meets with parties in a private “without prejudice” joint session and subsequently provides them with a short written evaluation, either in narrative or “bullet point” form, which may include a settlement “range”.

In ENE, the role of the neutral evaluator is to assist the parties to:

  • Permit the parties with or without counsel to make an oral presentation of their positions regarding the dispute;
  • Help and direct parties to search for common ground and narrow the scope of the dispute;
  • Introduce new ideas or a fresh perspective to the dispute and search for or propose alternative solutions;
  • Assess the relative strengths and weaknesses of the parties’ positions, explaining the reasons for his or her assessment and estimate, where possible, the likelihood of liability and the range of damages;
  • Suggest and help the parties explore the possibility of a settlement.[1]

ENE lends itself well to cases where there are complicated or unusual mixed questions of fact and law, difficult evidentiary issues, difficult to prove damages and where the case will turn on expert evidence.

The benefits of ENE are clear: the parties are afforded an early opportunity for neutral evaluation of the merits of their position and the strengths and weaknesses of their case long before prohibitive costs are incurred in oral and written discovery.

[1] Excerpts are partly taken from Edward J. Dauber, “Submission of Executive Assistant Attorney General Edward J. Dauber and the New Jersey Attorney Genera’s Office for the CPR Legal Program Award”. Trenton (NJ) Office of the Attorney General, 1992, pp. 14-15.

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