MEDIATION AND POST-ELECTION LITIGATION
outsider to help educate the judiciary and state election administration about
process decisions. He explains:
In a recount, the deciding body is inundated by partisanship. If a neutral
mediator could narrow the set of disputes that come before the deciding
body by working with the parties to eliminate the outliers, the efficiency of
the process would be greatly enhanced. 106
Good election attorneys are always thinking two or three moves ahead.
Adjudicatory bodies therefore are unable to get input on process matters from
attorneys in recounts without also getting a large dollop of partisan
maneuvering. Mediators could help educate the judiciary not about which
side has the better argument, but about process intricacies and decisions that
the adjudicatory body must address in order to arrive at a fair and
comprehensive process.I07 Election attorneys will not be fans of the idea.
Even still, reigning in the adversarial process in this context might be an
important step forward.
Before moving on to examine a case study, an additional mediation
model bears mention. One of the initial process questions mediators must
confront is whether to "co-mediate." Co-mediation refers to the common
practice of two mediators working together as a team to mediate a dispute. 108
The benefits of co-mediation are multiple. Most of the advantages of comediation are practical. The co-mediation model provides another set of eyes
and ears to help resolve a dispute. For example, while one mediator is
talking, the other can be attentive to verbal and non-verbal cues from the
parties. Many mediators also prefer the co-mediation model on the theory
that two minds are better than one. When one mediator might be stuck, the
other might have ideas about how to proceed. A final practical benefit of comediation relates to strategic pairing. For example, a less experienced
mediator might be paired with a more experienced mediator for training
purposes. Mediators with divergent backgrounds or approaches might also be
paired to enhance their ability to handle a complex dispute.
106 Telephone interview with the Hon. Paul H. Anderson, Associate Justice,
Minnesota Supreme Court (May 27, 2011).
107 Note that any mediator interaction with the court, even if solely educative in
purpose, should be handled thoughtfully. A structure in which a mediator is perceived as
"reporting back" to the court may adversely impact mediator neutrality. Telephone
Interview with Howard Bellman (August 15, 2011).
lOS Lee A. Rosengard, Learning from Law Firms: Using Co-Mediation to Train New
Mediators, 59 DISP. RESOL. J. 16, 18 (2004).
351
HeinOnline -- 27 Ohio St. J. on Disp. Resol. 351 2012
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