Mediation models – hybrid mediation

Posted: 20/01/2022

Mediation has traditionally involved couples who are separating meeting with an independent and professionally trained mediator, to discuss and try to agree the logistics and practicalities of their separation, including how finances should be divided between them and what the arrangements for children should be, if applicable.

But what if the structure of the family’s finances is complicated? What if the parties cannot agree on the value of the family home? What if one party does not feel comfortable being in the same room, physically or virtually, as their former partner?

Historically, if any of these questions had arisen, the parties may well have turned to the court for either judicial input, or in the hope that the judicial process would offer them some protection. Currently, however, the court system is in crisis. It has been for many years, and a lack of judges, funding and other judicial resources is putting a real strain on the system. There are often huge delays, with cases postponed at very short notice due to a lack of judges.

Of course, there are some cases where a court application must be made: for example, if one party requires an urgent injunction, such as a non-molestation order or an occupation order, to ensure their safety and/or the safety of the children. However, in most cases that do not involve such issues, the parties are encouraged to engage in out of court dispute resolution, such as mediation, arbitration, or collaborative law.

The traditional mediation model has evolved, and ‘hybrid mediation’ is now being offered by many trained mediators. Even with the traditional model, mediation enables the mediator to introduce other professionals into the process if appropriate. If the parties have a complex financial structure, an accountant can be brought in. If they cannot agree on the value of their assets, a valuer can be introduced. If there are safeguarding concerns, or concerns about the wellbeing of the children, it might be appropriate for an independent social worker to be appointed. By having the ability to engage such experts in the mediation process, the mediator and the parties can reduce the issues in dispute, and seek assistance from third parties when required.

The mediator can also bring the parties’ lawyers into the process and may choose to do so if the case is difficult or complex. With hybrid mediation, parties’ solicitors can be more directly involved in the process. The parties can have access to immediate advice and support from their lawyer. The solicitors and mediator can agree with the parties how they will be involved and at what stage. Mediators cannot give legal advice, but with their solicitor involved in the process many clients feel more confident and supported during the process.

If either or both parties do not wish to see the other, the mediator can engage in ‘shuttle mediation’, whereby the parties sit in separate rooms, and the mediator goes between them in order to facilitate the discussion and explore the possibility of an agreement being reached.

Hybrid mediation goes much further and allows the mediator to hold separate meetings with the individual client. During those meetings, which may also be attended by the client’s solicitor, matters can be discussed confidentially and those confidences, provided they do not relate to financial disclosure or pose safeguarding risks, can be held by the mediator.

There is no time limit on any model of mediation. Often, parties will engage in the process prior to court proceedings being commenced, but it is entirely possible, and often encouraged by the courts, for a couple to mediate during the course of court proceedings. Given the significant delays that are being experienced with the court system, mediation may therefore be able to offer a faster and more amicable solution.

At Penningtons Manches Cooper, we have trained mediators who are able to offer both the traditional model mediation service, and the hybrid model. If you would like any further information, please contact our family team.

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