Hybrid Mediation: What is it and why should I use it?

Hybrid mediation was launched today (1^st December 2020). It offers separating couples an additional process choice (or route) to resolve issues on divorce or separation.

At Family Law in Partnership we have two hybrid mediators – Directors David Allison and James Pirrie. Hybrid mediation can be used to resolve issues relating to both children matters and finances with James offering hybrid mediation to cover both issues, and David offering hybrid mediation in relation to finances only.

 What is hybrid mediation and how does it work?

 Step-By-Step:

1. You and your former partner:
   • each appoint a lawyer; and
   • agree to appoint a mediator who is not connected with either of you or with either of your legal teams.

2. Throughout the hybrid mediation you will stick with and be supported by your lawyer – unless you decide that you want to lead the negotiations yourself.

3. You and your former partner will work with your respective lawyers to identify the issues at the heart of your case.

4. Your lawyers will also help you both to discharge your duties to provide information and identify the information that is needed from your former partner.

5. The lawyers and the mediator will together identify what information needs to be gathered to resolve the issues between you. This may be information from actuaries (about pension valuations, for example) or from accountants (about business valuations, for example). If at a later date it is clear that further information is needed, then it is commissioned. But this initial approach – a targeted information gathering exercise – can avoid the time and expense of collecting all the information which might possibly be relevant at the start of the process (“in case we may need it or it shows something”).

5. Your lawyer will give you guidance on the law and will give you their view of the possible outcomes if you can’t reach agreement and you have to go to court; but all the time the focus is on negotiations taking place out of court.

6. It is the mediator’s job to provide a safe forum in which discussions can take place. Often this will be in a “shuttle” arrangement … where the mediator dots between two rooms (or between two zoom-rooms) that you will have with your lawyer and your ex will have with theirs.

7. The mediator’s job is to push things along: the process can usually start quickly and is generally then timetabled so that information doesn’t fall out of date (and require updating).

8. Some mediators prefer to focus on resolving the issues in a one-day meeting. Others will timetable a series of meetings over a longer period. But the key is that this timetable is always a much shorter than if you were to take the case to court.

9. The mediator is focused on helping you to reach an agreement. So, of course, an eye is kept on rights and responsibilities and, in particular, your respective lawyers’ views of the legal entitlements. But importantly and obviously, the focus of the agreement is built on your personal preferences and choices (which would often be largely lost in the court process).

What is the role of the Hybrid Mediator?

Ultimately, the mediator’s role is to maintain progress and to help you and your former partner to reach a conclusion.

If a conclusion can’t be reached, the mediator will indicate this so you are released quickly back into a process that will deliver a conclusion (perhaps arbitration or the court process).

But faced with the risk of the court process, costs and delay, often all parties find a new energy to pull the discussions over the line to reach an agreement.

The mediator will work with you to understand what you want and how you and your lawyer see the situation … and from the mediator’s position of neutrality the mediator is looking to find the crevices from which solutions can be engineered. Legal principles might be used but things that the law might be unable to use or even see can be traded or brought into the mix.

And of course, there is the benefit of the tens of thousands of pounds that is being saved from not going through the court process that can be shared back into the marital pot. 

And Finally:

Once an agreement has been reached, the lawyers write up the details and formulate it into a court order that is usually stamped at court. The importance of this is that the order has the same enforcement options as if the court had made it to begin with – but

• because it was reached by agreement, enforcement is less likely to be needed; and
• it will be an order achieved at a fraction of the cost and in a fraction of the time that the court would have taken.