Five eyes: the power of hybrid mediation

Elaine Richardson’s article on Hybrid mediation in this issue is very well timed, as I have enjoyed two integrated (hybrid) mediations in the last few weeks. I say “enjoyed” deliberately, because the professionals involved, all of them lawyers, were a pleasure to watch, to listen to and to collaborate with. And we’ve all collaborated (see what I did there…) on this article to explain why working in this way has been such a positive experience for us and our clients.

Louisa and Dani

In terms of how it works in person, when mediating with Dani and Louisa, we use three distinct spaces. The clients have a room each with their solicitors and I have a room where I meet with the lawyers. This means that where it may be too much for clients to share a space, I am able to shuttle between the clients (supported by their lawyers) to facilitate the discussions – the reason that many participants use this integrated mediation approach is because they need more support, and this can be for a variety of reasons.

Dani and Louisa are able to help their clients manage expectations and look at the likely boundaries that a court might have. They demonstrate beautifully how to acknowledge good and sound legal advice provided by the other lawyer, in a way that their clients can hear and absorb.

“As a non-mediator” says Louisa, “it has been invaluable to be involved in hybrid mediation with Dani and Rebecca. Whilst I have always advocated for NCDR options, it has been eye-opening to see firsthand just how beneficial these are. While there may be some concerns that clients would be paying for a mediator and their solicitor’s attendance, the reality is that most clients would seek advice and assistance on the agreement reached/proposals made. By the solicitor being part of the process, the process has a short cut, ultimately saving on costs.”

She went on: “for clients who have health conditions or any additional needs that would make a standard mediation approach difficult to participate in, we are opening up the door to more people by offering a more integrated approach. By having a solicitor present, clients are able to discuss – there and then – any concerns they have and the merits of any proposals. Even if an agreement is not reached in the first session, the issues can be narrowed and the next steps agreed. Every case is unique and hybrid mediation puts bespoke measures in place that best suit the participants. Conversely, in a court hearing, participants are not able to have someone with them as support.”

Louisa acknowledges that integrated mediation may not be suitable for every case, but says “I would absolutely recommend it for those clients who would benefit from that extra support. In cases where there is likely to be full disclosure of assets, everyone is willing to engage in negotiations and where there is a good working relationship between the solicitors, I think this process would be far more appropriate.”

For Dani…

“being a mediator myself, I am very supportive of mediation models and have previously had great success with hybrid mediation for some of my clients. The lawyers and mediator need to be able to work together cohesively to support clients to resolve issues. That starts with constructive communication between the lawyers and a hybrid mediator who will continue this and communicate well with everyone. Preparing relevant disclosure in advance by agreement between lawyers and producing a joint schedule of assets means that everyone comes to the table in a position to make real progress and try to resolve matters.”

“I have found the hybrid mediation process a particularly helpful model to use in cases where one (or both) clients has a medical condition, mental health diagnosis or other needs which mean that they require some additional support to participate in a mediation process. This includes clients who are particularly anxious or where there may have been some element of abuse within the relationship (although mediation processes use safeguarding to ensure that everyone is safe and Rebecca is careful to do so).”

“Because mediation is adaptable and flexible, it can be tailored to the individual clients and their needs. We can allow for regular breaks and space for clients to process what is being discussed. It takes some of the pressure off clients, whilst maintaining forward progress. The support of third parties (such as close family members) can also be facilitated within this process with the consent of both clients.”

Kelly and Nikki

A recent sensitive case involved H&W plus two children who had disengaged with Mum. Mrs Y had spent some time working through the trauma of losing her children and whilst she felt strongly about certain aspects of the history, she wished to forge a future for herself. Mr Y was keen to avoid further detriment to the children and was open to looking at ways to deal with the finances, which again were modest.

Integrated mediation works very well when the lawyers are invested. Much like the collaborative approach, it helps to know who you are working with, and this is especially true as the mediator. Nikki in particular took a gamble in working with me, as we hadn’t met before, but it was immediately clear that she shared a similar outlook.

Even when professionals know each other well, they may not have worked together face to face, or online, before. It’s important to test that out, to see how it feels. If the meeting is online, will you (as a lawyer) and your client share a screen together, and if so, how might you be able to have a chat with the other lawyer in confidence? How will it feel for you to be with your client for periods of time whilst your mediator is with the other person? This can take some getting used to.

Kelly said “In this case, I know my client found it invaluable to have me present during the meetings, to not only provide advice and guidance but to manage expectations and to talk through the various proposals going back and forth, very carefully. As this was a co-mediated shuttle, I was able to do that whilst Rebecca and Claire (our co-mediator) were with the other person.”

In both recent cases, I was provided with much of the paperwork beforehand. I prepared draft schedules in advance and we worked through them slowly together. The power of mediation is in the skills and language that the mediator brings to the room. Managing the personalities. Listening. Acknowledging what clients and their lawyers are hearing and seeing. Not giving a solution, and slowing down the lawyers from doing the same. Not taking notes. Using silence. When I was training as a mediator I wondered how on earth I would manage with not filling the silence, or having a blank piece of paper in front of me, and I now use all of those skills in my legal practice.

Mr and Mrs Y managed to narrow down some of the areas of discussion and wanted some time to reflect. Sometimes there are forces outside of the mediation room, or the lawyer’s office, which make a case hard to manage.

My reflection on this case is that dealing with some of the emotional and historic baggage may have been helpful and so bringing in other professionals may have made a difference. However, whilst Dani, Louisa, Kelly and Nikki see the benefit of this in their practices, it isn’t yet the norm for the public, who often view litigation as the best and most obvious starting point. We’re all wishing for an Eastenders story in which working together saves the day, but that doesn’t make for good viewing figures, and instead Eastenders lawyer Ritchie Scott seems to advise on multiple areas of law (think murder, contracts, family etc…), usually ending in court!

“On this particular case”, said Kelly, “we had three meetings, before any final decisions were made. My client was sympathetic to Mrs Y requiring a break at the conclusion of the third session and the last issue will be resolved between solicitors.”

Once Mr and Mrs Y had made their decisions, they then had the choice of working through them in detail, to come up with a draft Order or to reflect and have the lawyers do that for them. In that case, the very fact of coming to an end felt overwhelming for Mrs Y and she needed a break.

As Kelly says,

“The issues here were complex and required extra information to be obtained, but I do not foresee any reason why, in future cases, if hybrid mediation is chosen by the parties, costs can’t be saved with both solicitors dealing with the financial disclosure, including obtaining property particulars and mortgage-raising capacities before the first mediation session take place, to enable negotiations to start from the offset.

“Mr and Mrs Y chose to do their hybrid mediation sessions over Zoom. I was initially sceptical of this approach, having done my first hybrid mediation in person. I am pleased to say I was converted. I found it easier to have the client attend our offices, so we could be present together to speak to the mediator on one screen and then during the gaps between the meetings with the mediator, this enabled sufficient time to take the client’s instructions, so he didn’t feel rushed into making a decision.”

Nikki feels similarly:

“Mrs Y was understandably anxious about the process, particularly because mediation often requires direct interaction with the other party, and she was concerned about navigating complex legal discussions on her own whilst also dealing with the emotional side of things. However, hybrid mediation provided the perfect environment, allowing her to receive the legal advice and guidance she needed while also engaging in productive negotiations. She was able to discuss her options with me in real-time, which gave her the confidence to engage in the mediation process without fear of making uninformed decisions.”

“As mediators Rebecca and Claire [Kelly] were exceptional in their ability to create a balanced environment. They facilitated discussions in a way that encouraged progress without applying undue pressure. Mrs Y appreciated the pace of the mediation, which allowed her the necessary time to obtain further information and reflect on the potential impact of the settlement being discussed. This was crucial in helping her feel that she was in control of the process and not rushed into any agreements.”

“One of the most noteworthy benefits of the hybrid mediation process was the significant progress made at each session. Unlike traditional lawyer communication, which often involves a lengthy exchange of letters and documents, the mediation sessions allowed for direct and immediate discussion of issues. This efficiency meant that we were able to cover substantial ground in each meeting, moving closer to a resolution with every session.”

“Hybrid mediation also proved to be a cost-effective method of resolving Mrs Y’s legal matters. The effectiveness of the sessions reduced the need for prolonged correspondence between solicitors, which is typically both time-consuming and costly. Moreover, the progress made in each session meant that fewer sessions were needed overall.”

As a solicitor, I would not hesitate to recommend hybrid mediation to other clients who may be anxious about the mediation process but still want to explore a more collaborative and efficient way of resolving their disputes.

rebecca@familysolutionsnow.co.uk