The roots of hybrid mediation lay in a desire to find a way to make it easier to tackle more complex cases or cases in which the level of conflict looks like to escalate. Henry Br own (the lawyer who pioneered ‘all issues’ family mediation in 1985) believed lessons could be learned from the ‘caucus’ (a sub-group who can hive off to discuss the key issues in isolation) model civil and commercial mediations employed.
It was felt that if the model could be repurposed for a family mediation, it would not only inject more parity and openness (particularly over financial disclosures) but also allow lawyers to play a more constructive role and mediators to work more closely and more creatively with the parties involved.
At the beginning of a hybrid mediation the assigned mediator will initially meet with both parties and meet with their lawyers. They will then split off into different rooms and into their separate caucuses (involving, if needs be accountants and other relevant expert witnesses) to talk through the main points of the case and air their concerns so they can start to work towards the decisions they will eventually propose to the other side.
Throughout the process the mediator will move between both caucuses to advance the discussions and, hopefully, accelerate the point at which both sides’ proposals can be tabled so the first steps towards a settlement can be taken.
As it is a relatively new approach one thing we are often asked when we suggest hybrid mediation to clients is why we feel they should consider it as an option. In very general terms the benefits of hybrid mediation are:
As most family mediation sessions involve a series of 90-minute meetings, it is an option for hybrid mediation sessions to involve longer half or full day sessions which can shorten the overall process. A resolution can often be reached in a day as the parties have full access to their lawyers and other advisers as discussions unfold and their lawyer can begin to draft their consent order as soon as the proposals are agreed.
As the lawyers are there and actively involved, there’s no need to repeatedly ask for (and pay for) updates. Similarly, as everyone is together – albeit in different rooms – the potential for the misunderstandings that can arise from written communication lessens and, along with it, the need to pay to clear up any confusion.
Having separate meetings alleviates the potential for emotionally charged meetings which means those involved can concentrate on the main issues more objectively.
As the lawyers are present throughout, they can ensure their client sticks to the matter/s at hand, offering the knowledge and direction they will need to make the required decisions.
Clients have also told us they like the confidential nature of the meetings. They feel they can have a depth of discussion with their mediator that they would not be able to if the other person was in the room. They also feel that their discussions can be exactly that, a conversation that explores what they want and need to explore without comments being mistaken for promises or being misinterpreted and inflaming the situation, setting negotiations back in the process.
Even though the more emotional elements of the conversation will remain confidential, it is important to remember that there are some details the mediator has to disclose, for example anything relating to either party’s finances or assets or anything that could adversely affect the children involved.
The other question we are also asked is if a client can switch to a hybrid mediation if their case has already been sent to the court. The answer is it can. If the court process has already started, it can be put on hold so that the parties can try to find an alternative way to resolve their situation. In fact, the courts actively encourage couples to try and use mediation and cooperation wherever possible to minimise the cost, stress and time involved in divorce proceedings.
If you think that hybrid mediation could offer you a more comfortable and more effective way to reach a settlement, please email me at [email protected] and we can find a convenient time to talk.