Should I Consider Hybrid Mediation?

FLiP Director James Pirrie explains when it is worth considering using hybrid mediation for your divorce or separation.

We know that those who separate have a range of options for addressing the issues that arise:

• At one extreme, parties can hammer out solutions at the kitchen table, whilst:
• At the other end of the spectrum, they might take their issues to court for a judge to impose solutions.

Each of these options have myriad potential problems, but to touch on a few:

These two columns of problems might be summarised as:

• Insufficient professional input on the left hand; and
• Frankly, too much professional input on the right.

FLiP has long sought to identify and join with other leaders in developing better solutions that seek to sidestep these characteristics and provide the likelihood of better ways forward than these two options. There is of course no single best course.  We see our role of knowing the range of process options and helping with a diagnosis as to what will be for the best as a crucial part of our early role.

The arrival of ‘hybrid mediation’ is, we think, an option to which many will want to give careful consideration: it is not for everyone, but it offers a strong option for many.

There are four further aspects that need further mention:

Disappointment (or “judges are not magicians”)

There is certainly a feeling that lawyers and particularly judges will be able to put it all right. We may assume within the court process that the more we spend and the more detail with which we address our case, the more likely this is to happen.

But a judge is simply another lawyer who is likely to have far less time to think fully about your case than the lawyers and barristers advising you. Further:

Judges can only apply the law. The resulting decision may well not align with either party’s sense of “fair”.  The judge is not all-seeing and even within the discretion that they apply, their sense of what is fair may be far from your own. In short, “the outcome” is not like it is in fiction (gilded, unassailably insightful and morally perfect). It is likely to be pragmatic and disappointing.

Proportionality

This refers to the imperative that what is spent on lawyers should be proportionate to what is at stake in the case. Caselaw during 2020 has started to give this factor new prominence and the judges are increasingly strident that disproportionate costs will not be tolerated (for example, leaving the over-spender’s debt to lawyers left out of the assessment process).

Courts are increasingly critical of disproportionate costs. We applaud that – but in controlling costs, what the court may also be doing is permitting the realities to pass under the radar. In a financial case, for example:

• prevented from a careful exploration of complex financial arrangements; or
• having to go without an expert report because the court does not see it as necessary; or
• simply having to rush to make an open offer;

means that applicants (broadly those asking for the transfer of wealth) who may come at the separation from a limited understanding of the overall resources may well find themselves short-changed.

Timetabling

We referred in our table to ‘engagement’.  One side may wish to see things resolved and that is going to involve a series of coordinated steps so that each side arrives at a point of being fully informed and ready to negotiate at the same point. Around the kitchen table that may not happen; indeed non-engagement may well be one of the strategies used to secure a better outcome. At the other end of the continuum, the court DOES provide a timetable … but its timetabling is very spread out:

• the case management stage is unlikely to happen until perhaps twenty weeks have gone by from when you finally decide to issue; and
• the final hearing (should matters need to progress so far) may be a fifteen month wait.

A process that:

• on the one hand (unlike the kitchen table) can ensure each side will / is able to process through the progress; and
• on the other, ensures that this is done in a balanced way – ideally without either side feeling rushed but also ‘getting the job done’

may offer major advantage.

Support

We will go on saying it: there is so much to process not only as a consequence of separation but also as regards your frustration at the systems that deal with those issues. Doing it on your own, without legal help will mean that things are missed … doing it on your own and without professional support, such as from a counsellor or coach, will generally lead to expense and mess as emotional issues leak into the legal process.  No-one that I have met has ever regretted exploring this sort of help.

Why might hybrid mediation work?

Hybrid mediation would see:

• You retaining the focused-on-you support of your lawyer;
• A process that would accommodate input from a counsellor if you wanted this;
• A system of binding together the lawyers and their clients to work out solutions together …
  • The parties themselves are in charge of the decisions [rather than the lawyers];
  • Law informs rather than dictates the outcome;
  • The hybrid mediator’s job is to ensure that things continue to move along (or they terminate the process … and the threat of court process keeps all parties compliant);
  • Each party hears the other’s position through the neutral voice of the mediator: progress is thus accelerated.

Yes, you could agree these things between lawyers – and many times that will work and you can progress as a friendly, constructive dialogue … but where the situation is harder, it may feel that you have moved from the precarious balance of two wheels to the relative stability of three.

Too many of the alternative processes (in financial cases Early Neutral Evaluation, FDR, Private FDR, negotiations en route to court, final hearing etc) depend on their outcome (where earlier endeavours have failed to generate agreement) by turning up the volume on the legal input:

• solicitor guidance becomes barrister advice, becomes honed position statement and then judge-like prognosis of what the eventual judge will decide.
• But as we have seen, law is not all seeing and its “justice” may not be either party’s “fair”.
• Proportionality factors may mean that we are guided in our negotiations by second-guessing a pretty rough and ready legal approach that is not accessible for a year or more.

However, hybrid mediation will be a route for many to ensure they have specialist support from the professionals they trust whilst exploring solutions that will provide better outcomes for both.

You may find our blog linked below helpful. This answers commonly asked questions about Hybrid Mediation.