Common questions answered about using hybrid mediation for family disputes
In his recent roadmap for the family courts the President of the Family Division acknowledged that the normal working environment in the courts – which were already struggling to cope before the pandemic – is unlikely to return until the Spring of next year. The closure of courts and the impact of social distancing regulations are resulting in a backlog of cases and significant delays. In light of this, his vision for the future is that all parties, legal advisers and the judiciary should have express regard to all forms of noncourt dispute resolution. Hybrid mediation is a key aspect of such dispute resolution available in family cases.
Here we answer the following questions:
1 What is hybrid mediation?
Hybrid mediation is one of the dispute resolution options that is particularly suited to high conflict or complex cases, as it facilitates the inclusion of lawyers directly into the process, and allows parties to sit in separate rooms. Hybrid mediation is a combination of the family and civil mediation models. With the support of their lawyers, the participants are helped to focus on the issues, explore the options and formulate proposals for settlement.
2 What are the benefits of hybrid mediation?
- Quicker: mediation can take place over the course of a day; people can have their lawyers present in the process avoiding delays between meetings whilst they take advice, and the lawyers can draw up the consent order straightaway once the proposals are agreed;
- Cost-effective: being actively involved in the process means people do not have to repeatedly update their lawyers with the progress of the discussions; it reduces correspondence and the risk of misunderstandings or disagreements between the solicitors;
- Reduces conflict: separate meetings mean heavily emotional joint meetings can be avoided thereby enabling people to focus on the issues and outcomes in a calmer and more rational way;
- Participants are empowered and supported: hybrid mediation provides a safe and supported environment for people who might not otherwise be willing to mediate;
- Increases certainty of outcome: As lawyers can be more directly involved in the process, and are on hand to advise with the full knowledge of the issues and direction of discussions, there is less risk that people may change their minds as can happen when advice is sought by people in between meetings;
- Confidential: People can confidently explore options with the mediator without commitment or raising expectations, meaning progress can be made because more options are brought to the table more quickly.
3 What sorts of family issues can be sorted using hybrid mediation?
The hybrid mediation model is suitable for all manner of family issues, including disputes arising from the relationship breakdown of married people, civil partners, or cohabiting people; financial matters (including those with an international element), children matters such as where a child should live or go to school; where there are inheritance issues; where there are wider family disputes that may involve other family members such as parents who have a financial interest, or grandparents.
4 When is hybrid mediation appropriate?
Hybrid mediation is particularly useful in the following situations:-
• When the issues in the case are complex
• Where separate meetings (which can be supported by lawyers) would be beneficial
• When either of the people may feel unable to sit in the room with the other person
• If there is an imbalance of power between the participants to the mediation;
• Where there are high levels of conflict;
• If there is a concern about domestic abuse, an imbalanced power dynamic, or another reason why either person finds it hard to have a voice;
• Where an element of confidentiality is needed
5 How is hybrid mediation different to other family mediation?
The main differences between hybrid mediation and the traditional family mediation
- Hybrid mediation differs from traditional family mediation both in practical terms and also in its overall principled approach. In combining the best of the family and civil models of mediation, a balance is struck between on the one hand the importance of
personal family relationships and their transformation from antagonistic to cooperative, and on the other hand the importance of the more pragmatic, commercial need to arrive at an outcome to resolve the dispute.
- In hybrid mediation, each person usually sits in their own separate room, and the mediator shuttles between them. There remains flexibility for joint discussions all together where that would assist. 6 How does hybrid mediation work?
- The mediator has the discretion to keep some matters confidential. This can be hugely beneficial – it means the mediator gets a better insight into what each person is interested in, and concerned about, and can, therefore, get a better sense of the opportunities for settlement and the areas of common ground that people may not have realised were there
- The people in hybrid mediation can be supported in the room by their lawyers, whereas in other family mediation the lawyers usually only assist before and after the sessions.
- Hybrid mediation sessions can be a little longer than other family mediation – usually a half day or a full day is used – whereas other family mediation tends to take place over sessions of around 90 minutes to 2 hours. Hybrid mediation therefore tends to resolve disputes over fewer sessions.
6 How does hybrid mediation work?
The mediator will meet with the people in separate confidential initial meetings, to explain the mediation process and consider the issues the people want to resolve. Any safeguarding issues are also reviewed and the mediator will determine whether the matter and the participants are suitable for mediation.
If the people have instructed lawyers the mediator will meet with them to discuss the role they will play in advising assisting and supporting their client in the process. If only one person is represented, this meeting will take place with the lawyer and the unrepresented client.
The matter then proceeds to mediation meetings. The way the meetings progress is very flexible in terms of length of time and who is present (e.g. lawyers may be present at some of the mediations). The decision as to when lawyers attend meetings will be agreed based upon need and cost. It is also possible for other third party experts to assist either at meetings or in writing – for example a neutral financial advisor may be present in a matter where there are complex finances to address.
If the participants are able to reach proposals for settlement then the lawyers, if instructed, can immediately prepare the outcome documents such as consent order, agreed parenting plan, or similar.
Hybrid mediation can be combined with other non-court dispute resolution processes including arbitration, early neutral evaluation, private FDR, collaborative law, etc.
7 Confidential meetings – what are the benefits?
Individual confidential meetings can help people discuss things with the mediator in a way they might not feel comfortable doing if the other person were also present. People can explore options with the mediator without commitment or raising expectations. This encourages people to bring options to the table more quickly, and provides the mediator with insight into their desired outcomes and priorities. The mediator has a sense of the
opportunities for settlement and the areas of commonality thereby narrowing the issues and facilitating mutually agreed outcomes at an early stage.
8 Confidential meetings – what sort of things might be confidential?
The exact things that are kept confidential are specific to each person and situation, and normally include the reasoning behind options for settlement or the people’s hopes and concerns. There are things the mediator cannot keep confidential such as financial information (e.g. the existence of an asset), or matters relating to the safeguarding of children.
9 What are the costs involved?
Hybrid mediation is very cost-effective. The costs of the mediator in hybrid mediation are generally met equally by the participants but can be whatever proportions they decide.
Each person will be responsible for their own lawyer’s costs. The amount of the lawyers’ costs will depend upon their chargeable rates, and the extent to which they need to be involved in the process.
The lawyers’ direct involvement in the process reduces the need for people to meet their lawyers between meetings to report on what has happened and to obtain advice. It reduces the need for inter-solicitor correspondence. When a matter concludes in hybrid mediation the lawyers are on hand to draw up and agree any orders avoiding the need for correspondence between the two lawyers, and the need for the mediator to prepare a
separate Memorandum of Understanding or other documentary summaries is reduced.
10 Can I use hybrid mediation if my case is already before the court?
Yes: hybrid mediation can be used before proceedings are issued and during the course of the proceedings. If the court process has started, it can be put on hold to give people the opportunity to try and resolve their dispute through mediation. The use of mediation is encouraged by the courts.
Even if all issues cannot be resolved through mediation, narrowing the issues will assist in reducing the costs and length of the court proceedings.
11 How effective is hybrid mediation?
Studies have shown that mediation results in a mediated outcome in a large majority of cases. Hybrid mediation is a highly flexible and bespoke form of mediation, and one that can be used even in complex or conflictual situations, meaning more people have access to this very successful way of getting things sorted.
People are often surprised by how beneficial the flexibility of confidentiality can be – it can serve to not only enable people to be more open with the mediator than they could if the other person were in the room, but also to actually discover helpful ways of thinking about things that may actually make a big difference if shared with the other person in an appropriate way.
12 How do I arrange hybrid mediation?
If you have a lawyer they can give you details of mediators trained in the hybrid mediation model. Details of mediators trained in the hybrid mediation model can also be found on the Resolution website www.resolution.org.uk
Your solicitor can refer you to the mediator or you can self-refer. The mediator will then arrange an initial meeting with you, and also contact the other person. After the initial meetings, and where solicitors are instructed, the hybrid mediator will arrange to meet with them to discuss and design the process that best suits you.
13 Where can I find a hybrid mediator?
A list of mediators trained in the hybrid model is on the Resolution website
14 How long does hybrid mediation take?
The way meetings progress is very flexible in terms of length of time and who is present. Hybrid mediation tends to take place over the course of half a day or a day (whereas other family mediation tends to take place over sessions of around 90 minutes to 2 hours). People can have their lawyers present in the process avoiding delays between meetings whilst they take advice, and the lawyers can draw up the consent order straightaway once
the proposals are agreed. Hybrid mediation therefore tends to resolve disputes over fewer sessions.