What is hybrid mediation and when does it work?

Hybrid mediation is a type of family mediation. It will usually involve lawyers as well as a mediator, and the mediator will usually hold confidences between the participants with their agreement.

It can be particularly helpful where the couple would benefit from advice and guidance on technical aspects of the case and/or on likely outcomes in respect of the issues involved, and want to avoid court.

What is hybrid mediation?

Hybrid mediation is a confusing term that is interpreted differently by different practitioners. It may include:

• The involvement of lawyers in meetings rather than advising in the background

• One or two longer meetings after the preparatory work has largely been done, rather than a series of shorter meetings

• The mediator will hold confidences between the participants with their agreement

It is usually best to ask anyone using the term to explain what they understand by it, to make sure there aren’t any misunderstandings.

Hybrid mediation is different from the usual family mediation, which usually involves just the couple and the mediator meeting together and all the preparatory work (eg financial disclosure) being done with the involvement of the mediator. Often there is no lawyer involvement or the couple may have some legal advice in the background and to help formalise the agreements reached.

Commonly a hybrid mediation will involve one or two longer meetings with the couple and their lawyers (solicitors and/or barristers) managed by the mediator.

How hybrid mediation works in practice

Often everyone will start together in one room to agree the issues that need to be resolved during the meeting and what everyone hopes will be achieved. The mediator will then usually meet separately with each of the couple and their lawyer/s to start to build a rapport and trust with each team, to explore the background, the issues, and to begin assessing where there may be scope for compromise.

There will then be a series of meetings, in whatever format is agreed, led usually by the mediator. For example, the mediator might meet with just the clients together, or just the lawyers. Or with everyone again.

It is not unusual for one person to feel very strongly about one aspect of the case, and the other to feel very strongly about another. Often individuals are reluctant to divulge what they are most concerned about and where they might be willing to compromise, for fear of the other exploiting that information. In hybrid mediation each may share those thoughts with the mediator in confidence, who can then see where compromise may be possible. The mediator should check at the end of each individual meeting whether they may share any of the discussion with the other client and if so exactly what may be said, at the time the mediator considers most appropriate. The mediator is not just a messenger moving between the rooms.

The mediator may make theoretical suggestions to each, again in confidence, to explore possible outcomes. So for example “X hasn’t said this to me, but theoretically, if they were to say that they would be willing for you to stay in the house for say 5 years, if then it was to be sold, how would you feel about that?”. This could be met with a response such as “Well, 4 years would be enough, but I am worried about how I would be able to pay the mortgage for that amount of time”. This would then enable the mediator to explore the issues further to see whether a compromise might be possible before seeking the permission of each to share a possible solution with the other.

The role of the lawyers in a hybrid mediation process depends very much on the personalities and knowledge of the clients. Some clients will be very comfortable speaking for themselves. Others will be guided more by the lawyers, who will do more of the talking. The lawyers can expect the mediators to ask them for their views on any legal issues, the prospects of success on individual issues at court, how much it would cost to pursue matters through court proceedings, as well as how long it is likely to take. The mediator may be gently challenging of the lawyers to make sure the clients are clear about the potential downsides as well as the potential upsides.

There may also be ways of resolving particular issues that have not been considered at all previously by the clients or the lawyers, and the mediator will usually encourage a problem solving approach so that all involved may think differently about particular aspects of the situation.

When hybrid mediation may be effective

• Complex finances and/or legal issues

• It makes sense for the lawyers to prepare the financial disclosure due to complexities

• Imbalance in bargaining power without lawyers present

• More challenging personalities with more support needed for one or both of the couple

• Uncertainty around legal position

• Need for momentum; for example with an expensive court hearing upcoming or a practical issue such as the sale of a house or a business needing the co-operation of both of the couple and a consensus to be reached.

• Clients and lawyers are committed and emotionally ready for a consensual outcome

When hybrid mediation may not be suitable

• One person unwilling or unable to engage at all or in a timely manner

• Abusive relationship with unmanageable safety concerns

• Inadequate financial disclosure and/or preparation

• Lack of available funding

• Lawyers lack confidence to give pragmatic and solution focussed advice in the mediation OR one or both do not take on board any advice that they do not agree with

• One or both have no regard for anything other than their own world view and would rather spend their resources on litigation rather than make any concession

How hybrid mediation compares to other options

Hybrid mediation is the best option in complex cases. The support and involvement of lawyers and the mediator holding of confidences should give the best chance of an agreement being reached, provided all the necessary preparation has been done and all involved are focussed on reaching a settlement. It is a problem solving approach with the clear aim of reaching a consensus, without debating legal arguments.

Private FDRs (pFDRs) can seem similar in terms of format, involving lawyers and usually taking place as one long meeting. However the process tends to involve far more legal argument and the focus is very much on what a court may order at final hearing and the view of the “judge” (evaluator) presiding over the day. Fundamentally the judge may not meet separately with the parties nor hold confidences between them, meaning that the discussions tend to be far more positional.

“Standard” family mediation usually involves the couple producing their financial disclosure with some input from the mediator, so this can save a lot of money in legal fees, although is more difficult in complex cases in which legal input to that disclosure process can be very helpful. Most mediators do not routinely meet with the couple individually (other than at the outset for the initial screening meetings) or hold confidences between the couple, although it is quite possible for this to happen with everyone’s agreement.

Hybrid mediation can work well in conjunction with court proceedings or arbitration; with the mediator becoming involved prior to and/or in combination with a pFDR. This means that if a consensus is not reached, the couple will be able to proceed swiftly to a final hearing with a judge or arbitrator deciding the outcome.

Closing paragraph

Hybrid mediation is an excellent option to consider for couples who have complex financial circumstances or where tricky personalities are involved. Additional legal support in the process as well as the mediator being able to hold confidences between the couple and their legal teams can assist with reaching a consensus even in the most apparently intractable cases, where both of the couple wish to bring matters to a conclusion. If you’d like to find out whether hybrid mediation could work for you, our family law team is here to help.

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