OHIO STATE JOURNAL ON DISPUTE RESOLUTION
(Vol. 27:2 2012)
An additional benefit to co-mediation goes beyond practical advantage.
Some mediators find that their neutrality is enhanced through the comediation model. One obvious example is the use of a male mediator paired
with a female mediator when there is gender imbalance among parties (for
example, in a mediation between a divorcing husband and wife). The
prospect of enhanced neutrality through co-mediation is interesting to
contemplate in the election context, where it could prove quite useful in
tempering concerns about partisan affiliation of mediators. Using a comediation model could alleviate perceived bias or lack of political neutrality
in a post-election dispute. Co-mediators could be appointed in a number of
ways to enhance perceived neutrality. A court or other appointing body could
tap two mediators generally affiliated with opposing parties in the dispute;
for example, one mediator with a known record of supporting Democrats and
another with a known record of supporting Republicans.I09 This
arrangement, however, might feed fears that the mediation might become
overly politicized. A possible solution would be to allow each party to
choose a mediator from a list of mediators with known affiliation to the
opposing party. This would force each party to choose the most politically
moderate mediator it could find. 11 0 Although it is possible to imagine much
fretting and handwringing about which mediators are selected, choosing a
mediator is a much less difficult project than choosing the members of a
tribunal or canvassing board since these bodies, unlike mediators, are called
on to make rulings. Mediators, though they may employ evaluative
techniques, by definition lack authority to force an outcome one way or the
other.
The benefits of using election mediators to resolve post-election process
disputes are not just benefits in theory. The next section uses the 2008
Minnesota senate race to examine whether mediation might have played a
useful role.
109 Note that selecting co-mediators on the basis of partisan affiliation alone would
be a grave mistake. Indeed more important than perceived partisan affiliation should
always be expertise in mediation, particularly co-mediators should be selected from a
pool of mediators who are (1) respected within the mediation and election law
communities, (2) have a solid track record successfully mediating public disputes, and (3)
are able to work effectively with one another as mediators in terms of mediation style and
approach. This might be a tall order at present, but the hope is that a cadre of qualified
individuals will develop over time. Telephone Interview with Howard Bellman (August
15, 2011).
110 Foley, supra note 42, at 378.
352
HeinOnline -- 27 Ohio St. J. on Disp. Resol. 352 2012
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