Resolving complex and high conflict cases out of court: an introduction to “lawyer-assisted” or “hybrid” mediation (Part 1)
It’s often said that “a case is too complicated” or “there’s too much conflict between the couple” for mediation to work. Similarly, if one or both of a separating couple have very strong views about the appropriate outcome of their case, then mediation may not seem appropriate. This is where “hybrid” or “lawyer assisted” mediation can work.
What is family mediation?
Usually family mediation involves a couple in dispute meeting with a qualified family mediator for several meetings of a couple of hours each to resolve the issues between them. The issues commonly include the arrangements for their children and financial matters after a separation.
The mediator helps the couple to produce and exchange the required financial and factual information and then facilitates their discussions about settlement. These discussions take place together; either in person or virtually on Zoom or equivalent. When agreement is reached, the mediator will record the terms in an appropriate document. You can find out more about mediation from my colleague Caitlin Jenkins here
What is lawyer-assisted mediation?
Lawyer-assisted mediations commonly involve the couple and their lawyers meeting with a hybrid-qualified family mediator, or an accredited civil/commercial mediator. The same issues may be discussed, and usually the mediator will facilitate one long meeting; typically half a day or a day, with the lawyers carrying out the preparatory work in producing the relevant financial and factual information and briefing the mediator in advance.
One fundamental difference between most family mediations and lawyer-assisted mediation is that the mediator will meet separately with each of the couple and their lawyer in separate physical or virtual rooms during the course of the day, and will be able to hold confidences between the rooms. This means that each of the couple can be completely open with the mediator about their real concerns and objectives, and where they are prepared to compromise, without having to “show their hand” to the other. The mediator is then in a unique position to help guide the couple towards a compromise.
What is hybrid mediation?
Hybrid mediation is in practice the same as lawyer-assisted mediation, although the couple may not have lawyers or involve them. It is conducted by a hybrid-qualified family mediator. If lawyers are not involved, then it is more likely that more than one meeting will be needed to reach a settlement of the issues, because the mediator will need to assist the couple with the necessary preparatory work of producing and exchanging financial and factual information.
What happens at a hybrid and lawyer-assisted mediation meeting?
We have produced a video role play of the first part of a mediation meeting involving a separating heterosexual couple, so that you can see how it works. The role play demonstrates the start of the mediation meeting, and then the meeting between the mediator, the husband and his lawyer.
Watch out for my next blog when I'll explain more about what happens during a mediation and you can find out what happens at the end of the mediation.