For Family Mediation Week 2019, Mediator Sarah Jelly and Paralegal Nicola Logan look at one of the emerging trends in family mediation.
At Family Law Partners we seek to keep family law disputes out of Court as much as possible using various Dispute Resolution [DR] mechanisms. However, we are aware that every relationship is different and there is no ‘one size fits all’ in family law cases. We are therefore always open to exploring new options. The hybrid mediation model developed by Henry Brown was therefore met with great interest from our expert team.
The hybrid family mediation model incorporates many of the features seen in civil mediation. Traditionally, in family mediation separating couples may seek advice from a solicitor before going off to approximately 4 mediation sessions, obtaining further advice from their solicitors in between if they wish. This can cause the process to be slow and sometimes erratic where parties appear to resolve matters between themselves at mediation but completely change their minds upon obtaining advice from their solicitor.
Hybrid mediation is based on the ‘caucus model’. A caucus is a group or subgroup who meet to discuss issues and make decisions. In hybrid mediation parties’ lawyers, where instructed, have a more active role in the process. The mediator will initially meet with both parties and their lawyers as a group before they split off into their separate caucuses. Sometimes parties will bring along accountants and other individuals who may assist them, making up a ‘team’ to facilitate an agreement. The two ‘teams’ are able to meet in separate rooms to explore issues, address concerns, and develop proposals. The caucus model also offers parties the opportunity to cool off from what can be heavily emotional joint meetings and reconnect with the issues, resulting in a much more rational negotiation.
The mediator will go between the two groups, hoping to arrive at a mutually acceptable set of proposals. Hybrid mediation can be a more straightforward process for the clients than in, for example the collaborative law model, as everyone’s roles are clear and distinct.
The key to the traditional family mediation model is transparency. The mediator will not keep any information given to them by one party confidential from the other side. It is thought that this helps to develop parties’ trust in the mediator’s neutrality.
In contrast, in hybrid mediation, the mediator will only share with the other side information which they have been authorised to disclose. This means that mediators can have separate, confidential meetings with each party, and can exercise more creativity in helping them reach an agreement. Parties feel free to ‘throw ideas’ about and test them within the confines of their caucus, without fear that this may undermine them later on in negotiations for example, if they decide against that idea.
The hybrid mediation model can be empowering to vulnerable clients. As in “shuttle” mediation (where the two parties are in separate rooms throughout), there is no need to have joint sessions at all. The added benefit in hybrid mediation is that such clients are much more supported throughout the process. Having their ‘team’ there can help them find a voice. In traditional family mediation, it can often be unsettling to clients that, on the day of a mediation session, they are effectively stripped of their support network during mediation meetings.
Too often cases with a history of domestic violence are dismissed as being unsuitable for mediation because of power imbalances amongst other things. However, it is bizarre to assume that individuals in such circumstances would rather sit in a court room with their abuser in proceedings which span over many months. Hybrid mediation may well be the answer in such cases however, it is important to find a mediator who has been specially trained and, despite the use of confidentiality, is able to remain committed to the principle of even handedness.
Memorandum of Understanding and Financial Consent Orders
Where parties resolve matters in mediation, the proposals are drawn up into a “Memorandum of Understanding” which is then reviewed by their solicitors. Where finances are concerned, the solicitors will draft a consent order incorporating the proposals which can be lodged with the court. At this stage, lawyers can be placed in a difficult position if they think that the agreement made is a bad one from their respective clients’ point of view. Raising concerns not only risks damaging their relationship with the mediator, but can be highly damaging to the family at the centre of the mediation. The parties may have walked out of the mediation with new found communication skills and trust which will be undermined if one party pulls out of the agreement. There is a risk therefore that lawyers will be asked by the parties to simply ‘go along’ with a bad deal.
There is also the risk that, once the Memorandum of Understanding has been passed between solicitors a few times that some aspects of the parties’ proposals may become lost in translation. In hybrid mediation, there is no need for a Memorandum of Understanding as lawyers are present, can advise as the mediation goes along and draft a consent order straightaway.
Once parties and their lawyers agree to mediate, the mediator will send out an ‘agreement to mediate’ for them all to sign. The mediator will meet with the lawyers to identify issues, and agree a timetable for disclosure. There is then usually a period of about a month’s preparation of disclosure documents. The hope is that, if parties are well prepared, matters can be resolved on the day of the mediation (unlike in the traditional mediation model).
Clients may ask whether it is a waste of time and money if it doesn’t work. The simple answer to that question is ‘no’. Even if parties do not manage to resolve matters, they should have narrowed the issues down further and, if they issue court proceedings, they may be able to skip the first hearing.
For us, the more options we are able to offer our clients the better so this new model of mediation has certainly been met with interest. It’s faster and the lawyer is able to better support the client through the process than in the traditional family law model of mediation. It may not be for everyone: parties may feel they are unable to trust the mediator’s neutrality and may prefer to have time between sessions to go away and consider proposals. It is important that you discuss the DR processes which may be available to you with your lawyer and identify one which is right for you.
Contact us for a confidential consultation with one of our family law experts.