In this podcast, JAMS neutrals Hon. Lynn Duryee (Ret.) and Rebekah Ratliff, CCLS, discuss the concept and application of co-mediation, where two mediators work together to solve disputes. The neutrals, who are known as the "settlement sisters" for their track record of working together to resolve disputes, begin the conversation by discussing the application of and potential benefits of a co-mediation approach. They discuss how bringing together neutrals with different experience and perspectives can benefit a case, as well as how having multiple mediators can support the momentum of a case.
Judge Duryee and Ms. Ratliff also discuss how co-mediation can be particularly useful for complex or multi-party cases. When it comes to selecting a mediator for co-mediation, the pair highlight how compatibility and finding a neutral whose offers a complementary skillset is key. The neutrals also weigh in on how to present the option of co-mediation to clients, and how different fee structures may come into play. The conversation wraps with Ms. Ratliff outlining some of the best practices that may be implemented in the co-mediation process.
Moderator (00:02): Welcome to this podcast from JAMS. For the next few episodes, you’ll be listening to a new special series: The Mediation Table: Conversations in Conflict Resolution. This series focuses exclusively on mediation—exploring key issues, strategies, and best practices with leading JAMS neutrals and industry professionals. We’re glad you’re joining us for this impactful series. In this episode, we're talking about co-mediation, what it is and how it can benefit clients and neutrals themselves. With us are two JAMS neutrals who have experienced co-mediating, Lynn Duryee, a former superior court judge in Marin County, California. And Rebekah Ratliff, a former commercial complex insurance claims professional. Welcome, Rebekah and Lynn, you all are known as the settlement sisters. So, first of all, just what's that about? How did you all become known as the settlement sisters?
Rebekah Ratliff (01:00): Lynn? Okay, you want me to tell this part? Honestly, we settle everything that Lynn and I have had the pleasure of mediating together has settled. And so, we started calling ourselves the settlement sisters. We refer to each other as sisters to each other and about each other. And so, it was a very easy moniker actually to take on.
Judge Lynn Duryee (01:21): I just connected with Rebekah. We connected with each other as soon as we met, and I said, we have to co-mediate, and we had so much fun and we got it done and we wanted to do it again, and we finished each other's sentences and sandwiches. That's right.
Moderator (01:37): Rebekah, how did you two first meet?
Rebekah Ratliff (01:40): Lynn reached out to me. I was fairly new at JAMS, and she was just very generous in reaching out and offering that we should mediate a case together to just kind of give me some presence over in California, which I appreciated as an area where I was building and needed some visibility. And she was very generous to do that. And we hit it off, as she said, the very first time we talked, I don't remember how long we talked, but when we check in by phone, we were sharing pictures of our families. I mean, we just organically connected, and it has just been an amazing friendship.
Moderator (02:19): Let's make sure our listeners know what we're talking about, Rebekah. So, for those who aren't familiar with this concept, co-mediation, what is it?
Rebekah Ratliff (02:27): Co-mediation is an underutilized concept and conciliation, and in the right cases, co-mediation, which basically is a team approach to mediation, can benefit all the parties. It's a tool we can ensure access to justice, I think actually. And inclusivity where case outcomes may be more equitable, technical, non-lawyer, subject matter expert, alternative dispute resolutions, professionals like myself are finding their way into this space, and it's a very effective way to address various issues. There are common obstacles to a co-mediation arrangement are the inability maybe to get the approval of the parties and the reluctance of the primary mediator to suggest a co-mediator. But as someone who's seen hundreds of mediations as a former commercial insurance claims professional and now international mediator and arbitrator, I really do believe co-mediation is a win for all parties and the future. It's the future of ADR.
Moderator (03:25): And Lynn. Is this a new thing, co-mediation or is it getting attention now for some reason? Or is this just an old concept that just hasn't gotten the attention?
Judge Lynn Duryee (03:35): Yes, I think that it's both of those things. I think it is getting more attention now, and I think the idea of using more than one professional to settle a case has been around for a long time. It was the model that we had on my court for settling cases. I often worked with attorneys in settling cases and now at JAMS I have the privilege of working with other neutrals. And I think when you're a judge, you do all your work by yourself, and you're used to working by yourself. And what I love about being at JAMS is being surrounded by all these talented people and being able to work with them and really realizing two heads are better than one.
Moderator (04:14): Rebekah, two is better than one. And you bring this deep understanding of the insurance world. And Lynn mentioned just more ideas, a different kind of energy. What other benefits do you see for the ADR industry?
Rebekah Ratliff (04:30): Well, I'll say insurance touches every other industry, so I want to make that note. There isn't anything business or personal that happens in the world that might end up in dispute that insurance doesn't touch. So the skillsets that I amassed from my career of over two decades in the insurance industry have really been helpful in mediation and in co-mediation and whether used in early dispute resolution or later in the litigation phases, a co mediator can help work through issues and keep negotiations moving forward in mediations involving complex subject matters like an insurance, for instance, construction coverage, multiparty cases, a co mediator with particular expertise such as a civil engineer can offer knowledge and perspectives relevant to the technical and evaluative landscape of the negotiations.
Judge Lynn Duryee (05:22): Well, another thing, Rebekah, that you bring to a mediation is you and I get along well.
Rebekah Ratliff (05:27): Oh my gosh.
Judge Lynn Duryee (05:29): And we don't necessarily agree on everything, but the way that we connect to people and can talk about things I think is useful for the two of us and also for the parties. Because I mean, I just remember one case that we had where there was a very difficult person and we went and we jumped into a room together and I'm like, is it me? Am I doing something wrong? And you were able to provide feedback. The person was difficult. He seemed angry, and it gave me a chance to kind of take my breath and not react to him and say something that I'd later regret. But to be able to kind of understand what it looked like from your point of view, how was I reading this person? And another thing, Andrew, is when you're trying to settle a case, one of the things you're doing is generating ideas about what might work here. And again, you have someone else in there who's helping you do that. You're going to come up with more ideas. And one of them might land you don't know. Or another thing is sometimes you float something, what about this? And I'll say, well, what do you think, Rebekah? And she might agree, or she might not agree with me, but we're going to have a friendly and professional conversation, which shows that we're engaged and interested.
Rebekah Ratliff (06:41): Absolutely. Yeah. Our synergy is really off the charts. And I'll say too, attorneys work often in teams. Why not mediators? Absolutely.
Judge Lynn Duryee (06:50): It's true because you see more and you hear more when there's more than one person. And also, I know for sure, of course, I try to do my best every day, but you can't be perfect every day when you're working with someone else. The other person can pick up the slack when you're not being your best self. And I also find when I'm working with Rebekah, you bet. I want to show her how good I am at this. So, I'm in step at my great game when I'm working with her.
Rebekah Ratliff (07:17): And you are sis. Amazing. Yeah, every time. Every time. Yeah. Yeah. It's always a pleasure and we both are learning and it's efficient. It's an efficient way to run a mediation. You may have mediations inside the mediation, different issues that have to be resolved. It might be a personality issue; it might be subject matter. It might be an underlying matter versus the coverage issues and the mediation. And you have a team there to manage those various things. It could be simultaneous, it could be separate, whatever the plan is.
Moderator (07:56): Lynn, I can tell that you and Rebekah have just great chemistry, and I can see that benefiting clients very easily. How does this work in practice though? How do you go about finding a co mediator? What should you look for in skills and temperament?
Judge Lynn Duryee (08:12): That's a great question. I mean, at JAMS, I'm always looking to see who's joining our panel, and it's a great way for me to get to know the new neutrals. And also, I've been around for a long time, and so I love being able to support a new neutral and bring a new face into the JAMS group. So, I often work with new neutrals. It's a great way for me to get to know them. And I always love seeing what someone else's style is because everyone does this differently. And as I said, I was a judge for 21 years, so all my work I did alone in a courtroom, the idea that I get to see how other people do it, I'm constantly learning new things and being impressed by new techniques, and I want to try that. It's basically for me, Andrew, about compatibility.
Is it someone that I get along with? We don't have to agree on everything, but do we have a feeling of friendship and alignment with each other? Can we play off each other? Are we respectful of each other? Sometimes there's a case that calls for someone that has a different area of expertise than what I know, or maybe it's someone that I think a co mediator of a different gender or ethnicity or age or other type of quality might be helpful for one or more participants. So, I'm just one person with my own set of abilities and limitations. So, bringing someone else in that has other skills, it's great for me.
Moderator (09:46): Rebekah, can all cases benefit from code mediation or are there specific matters that are really best suited for co-mediation?
Rebekah Ratliff (09:54): I would think really more complex matters with different moving parts. I mean, for your run of the mill car accident, I would say no, that's not something that would be easy to sell to the parties for co-mediation. You may have someone shadowing you but not actually getting paid to do it, especially depending on what a fee agreement might be. A mediator can lend credibility to a colleague that they wish to employ as a co mediator. So, the way to sell the concept is to be able to explain the value of having another perspective. And again, as Lynn was saying, that might be around subject matter expertise, experience, perspectives, background, communication skills, personality, cultural competency. But you do have to sell it. First of all, you'll need permission if you're the lead mediator to have someone else in the mediation. You have to get the parties to agree to have the co mediator. In my experience, prearranged fee agreement between the neutrals is probably the way to go. And if you can do it at no additional cost to the parties, it's easier to sell. Yeah. But I'm thinking about more complex matters. High dollar figures, different towers of insurance. If you're talking about an insurance case, again, lots of moving parts. So, coverage cases.
Judge Lynn Duryee (11:09): And Rebekah, don't you think that multi-party cases are well suited for co-mediation?
Rebekah Ratliff (11:15): Absolutely.
Judge Lynn Duryee (11:17): Sometimes we're in the same room together, working together, and sometimes we're in separate rooms where we can divide and conquer, and you can go into one room and talk about something and I can go into another. So, Andrew, I don't really think there is a case where you could say, oh, co-mediation is a loser idea here. The only time I can think of it is every once in a while, in a highly personal, say, sexual assault often will be having very intimate and intense conversations with someone. And sometimes those are easier to do one-on-one.
Moderator (11:51): Yes. And Rebekah, or when do you suggest mediation to the client? Is it at the outset or does it come at a point when you believe another mediator could inspire you and help resolve this issue for the client?
Rebekah Ratliff (12:12): Okay, so that's a great question and I can't wait for Lynn to answer this as well. It depends sometimes, like Lynn is saying, if you have a multi-party mediation or complicated matters, you might suggest it upfront. Sometimes you have a mediation day, and you realize that because certain issues haven't been resolved and you have all these moving parts that a second session you may want to reconvene and then add a co mediator. So, it depends. What do you say, Lynn?
Judge Lynn Duryee (12:41): I think that's really true. There are two things that inspire me. One, when I met Rebekah, I knew I wanted to co-mediate with her and I just waited for the next case, and it ended up being a perfect case for the two of us to work on together. But then sometimes I'll know in advance, I had my pre-session call with one of the lawyers and I find out a client is a difficult client, has some personality disorder or something. And that's a case where I will often bring in a second mediator because that person is going to require a lot of attention and handholding, and you want to be able to give them that attention to be able to settle the case, but not at the expense of ignoring the other side in the other room. So that would be also, or if I have a case where there are 20 plaintiffs, there's going to be a lot going on that day, a lot of people to connect with. And so that's a case where I'll get a mediator to help me out.
Rebekah Ratliff (13:35): Well, that's a great point too, because if you have plaintiffs with competing interests or sometimes obviously you have co-defendants with competing interests, you definitely want to be able to manage that and give the attention that is needed. And roles need to be assigned according to the skill sets of the mediators and how they'll interact with the parties concurrently or sequentially. And the process really needs to, I'll use the word choreography, it needs to be choreographed for the management of all of those different things. The personality matches subject matter, communication styles and other even to manage body language, maybe cultural competency that comes into play, all of that.
Judge Lynn Duryee (14:18): I love the choreograph. This is kind of awkward to say, but sometimes I just don't connect with a lawyer. They are not picking up what I'm putting down, right? It's just like for whatever reason; I am not their style. And so, I might bring a man along with me. Maybe that person will do better with the man than with me. So, you want people to have a good day, and you want them to settle it. So, what are the tools that we can use so people are going to feel comfortable and confident in settling.
Moderator (14:56): Lynn, do you find that clients understand the benefits of a co-mediation arrangement? Obviously, there's probably some questions about cost and fees. How do you address that and what has been your experience in observing their reactions and do they get it?
Judge Lynn Duryee (15:14): So, the way that I do it, of course, is when I start the mediation, I go into the room and introduce myself, I introduce my co mediator. So, I'll say, I'm with me today is Rebekah Ratliff. I sent her CV to the lawyers in advance. But Rebekah, will you tell the parties, here what your background is, and then she'll do a wonderful brief description of what she does. Sometimes the parties will ask her questions, and then it's very organic after that. I mean, ordinarily, if it's my case, I will be taking the lead. But often turning to Rebekah, what do you think? What are your observations? And then what also happens from time to time, there's a party that loves Rebekah, they just completely connect with her and then they're like, well, Rebekah, can you tell us what you think about? And so, it just happens very naturally.
And I think that clients just find this is, most clients haven't been to a ton of mediation. So, for them it's normal. Ordinarily what I do is if there's a new neutral and I want to bring them in, I just split the fee with them because it's a joy for me and it's a business opportunity for them. And I feel like it's good for both of us and it's good for JAMS. But there are other cases where I will connect with the lawyers in advance. I'll send them the information about the other neutral. I'll explain why I want the two of us working together, and I will suggest a fee for the two of us to work together, which would be more than my daily fee for the two of us, but less than both of our fees put together. And then I make it worth their money.
Moderator (16:55): Well, and it obviously could be more economical in the long run if you have, again, two mediators resolving your case rather than one sort of trying to sort through the many complex issues.
Rebekah Ratliff (17:07): Andrew, Lynn brought up something that I think is key, and honestly, she didn't phrase it this way, but I will. Her humility, as accomplished as she is as a judge and as a neutral for her to... they love Rebekah. She loves to see that she has shared her platform with newer neutrals to make sure that we have a place and a voice in this field of work. And I want to say publicly on this podcast that I really appreciate you Lynn for that. I really do. You have no idea. But the humility of a lead mediator willing to share their space and split the cost of a mediation, however the arrangement goes, is a factor that really brings goodwill into the mediation from the neutrals that helps set the temperature for the entire hearing. I mean, it really does when they see synergy with the neutrals and there's a flow, and obviously the arrangement for how the mediation will be conducted is all organized. It really makes for a more efficient experience for the clients. And it's just, again, goodwill goes a long way.
Judge Lynn Duryee (18:22): And Rebekah, that idea of the flow. I mean, I think that's true. It's something that we feel when we are mediating a case and part of a successful mediation is building momentum so that you're moving forward, you're making progress. There's a feeling of optimism and cheerfulness that there's going to be a way out of it. And you're right, two people working together and holding that and maintaining that. The parties are like, they might think, well, I never thought this case was going to settle but look at Lynn and Rebekah. They feel really confident about it, so I'm going to go with them. And so that's an important part of the process.
Rebekah Ratliff (18:50): Yeah, we're the shepherds of the process. And if you're leading correctly, all we have is influence as mediators, we don't get to make decisions, we only have our influence to use. But when they can see that work is being done to help them make progress, it does really go a long way.
Moderator (19:19): Well, I think both of you have made the case that co-mediation really can be a win-win for not only clients and the lawyers, but also for neutrals themselves. And so, Rebekah, you've written about this subject. Are there any final best practices that you want to leave our listeners with in terms of going forward with a co-mediation?
Rebekah Ratliff (19:41): Sure. I made a point in an article on co-mediation as a conciliation tool that there can be different ways to conduct the mediation. It could be parceling where maybe, for example, there's a coverage issue that needs to be hashed out to enable settlement. And the co mediator is skilled in coverage, can work with the parties to determine what can be done about that issue while the other mediator works on the underlying issue. Shuttling is another method that I suggest involves working with the parties to find common ground to enable settlement options. Co mediators use the shuttling technique to caucus separately, so you're alternating rooms. And then that's for the example that Lynn used maybe with different co-defendants or co-plaintiffs. And then third, in my article I suggested concurrent caucusing when both mediators shuttled together for a tag team approach to stabilize and resolve issues. So, I'll just say co-mediation further enriches encourages and enables the collaboration or the collaborative environment of mediation. The parties get the benefit of varied skills and perspectives, and the mediators are able to collaboratively guide the negotiations and everybody wins.
Moderator (20:52): Well, not everybody can be the settlement sisters. That's just you two. But Lynn and Rebekah, I want to thank both of you for being on the podcast. We really appreciate your time.
Rebekah Ratliff (21:04): Thank you. Thank you for having us.
Moderator (21:07): You've been listening to a podcast from JAMS, the world's largest private alternative dispute resolution provider. Our guests have been JAMS, neutrals, Lynn Duryee and Rebekah Ratliff. For more information about JAMS, please visit www.JAMSadr.com and be sure to subscribe or follow wherever you get your podcast, to continue learning valuable strategies and insights from some of the most respected neutrals in dispute resolution. Thank you for listening to this podcast from JAMS.
