What is hybrid mediation? a guest blog from O’Sullivan Family Law Ltd

Jo O’Sullivan Writes:

Thank you for asking me to write a guest blog for your clients’ interest.  Tisshaws continues to be in the driving seat when it comes to considering how to solve problems for their clients without resorting to court. Hybrid mediation is one of these options.

What is hybrid mediation?

It combines civil and family models of mediation.  It enables the mediator to have separate meetings with the parties and their lawyers and to keep confidences.  This is in contrast to family mediation where the keeping of confidences is not allowed.  Somehow, family mediation became one where, routinely, clients’ lawyers were not actively involved. This is a reclaim of past practice and frankly a much welcome one.  So, it’s not really new!

For me, there is also an important opportunity to work in a team. The mediator can see ways to save costs by working with others. Involving a family consultant to take some of the emotion out of the process so that we can start to co-operate and find a way of sorting things out. We may need to have a hiatus to allow the parents to find ways to successfully parent post separation.

We may also need the help of a pension expert, accountancy help (e.g. to work out likely tax implications or to value a family business) or even a financial coach to help with budgeting.  The mediator can act as a co-ordinator and facilitator.

This is wholly in line with recommendations contained in the Report of the Family Solutions Group, ‘What about me?’ Reframing Support for Families following Parental Separation (November 2020)

What are the benefits of hybrid mediation?

• Quicker: mediation can take place over the course of a day or if sessions are spread over time there are usually less required.
• Outcome and or legally binding documents can be produced immediately.
• Cost effective: takes less time, and involves less duplication of effort when lawyers are involved at the mediation meetings, rather than advising between mediation sessions.
• Can reduce conflict: thereby enabling focus on the issues and outcomes
• Increases certainty of outcome: As people’s lawyers can be involved and the process is more efficient, there is less risk that someone may change their minds as can happen when advice is only sought between meetings;
• Confidential: People can confidentially explore options with the mediator without commitment or raising expectations. The mediator will not tell the other party of the confidences without express permission. But the mediator knowing how the parties are (privately) thinking does help bring about a settlement.

What sorts of family issues can be sorted out using hybrid mediation?

All manner of family issues, including financial matters (including those with an international element), children matters, inheritance issues and wider family disputes that may involve other family members such as parents or grandparents. Whether the parties are married or not.

Consider hybrid mediation for the negotiation of relationship agreements like prenuptials, cohabitation agreements/deeds or post nuptial settlements.

When is hybrid mediation appropriate?

Hybrid mediation is particularly useful in the following situations: –

• Where one party has a lawyer and the other does not. This helps the party without legal advice to have access to lots of legal information (as provided by the mediator) and helps them feel that they have someone who is creating a more level playing field.
• When the issues in the case are complex.
• Where separate meetings would be beneficial.
• When either of the people may feel unable to sit in the room or virtual 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.

How does hybrid mediation work?

The mediator has initial separate meetings with the participants to explore the issues. Then the mediator has a meeting or call with both lawyers to discuss their role, the information needed, and the format of meetings. Hybrid mediation meetings then take place separately or jointly or a combination of both. Lawyers do not need to attend all meetings but often they will be available on the phone to assist if needed.

Lawyers’ roles are to support their clients and give independent legal advice: the mediator remains in control of the process and discussions are between the participants.

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 is responsible for their own lawyer’s costs. The lawyers’ direct involvement in the process reduces the need for people to liaise with their lawyers between meetings. It reduces the need for inter-solicitor correspondence (expensive letter writing). And if you know me, you’ll know how much I don’t like lawyers’ writing letters to each other!

Ask your lawyer to consider this process as it’s really effective at finding solutions and moving forward.

Jo O’Sullivan is an Accredited Mediator and collegiate solicitor with O’Sullivan Family Law.