The Hybrid Model of Family Mediation; Best for more complicated financial cases

The Hybrid Model of Family Mediation; Best for more complicated financial cases

I was trained as a Family Mediator in 1996 in the first round of Mediation training for family solicitors by Resolution (SFLA as was). The trainers were Henry Brown and Felicity White who were two of the founders of FMA.  Henry had been trained in the USA by the late John Haynes who had pioneered the use of mediation in family cases. Henry was arguably the driving force behind the use of mediation for family financial cases in the UK. He was also a civil mediation trainer and was one of the original trainers for CEDR. He is the co-author of ADR: Principles and Practice, which is the standard ADR text book. I later took a conversion course to become a Civil Commercial Mediator, the training being led by Henry. As a result I am now an Accredited Civil Commercial Mediator through ADR Group. As a Mediator Henry (who now claims to be retired) was clearly incredibly creative and merged the civil mediation model into family mediation to give the “Hybrid Model of Family Mediation”. I agree that this model is best suited for more complex financial family cases.

As a Mediator I was approved to undertake legally aided family mediation in 2000 and I was, I believe the  joint 13th person to achieve mediator accreditation with Resolution in 2002. I am currently a practitioner member of the Law Society Mediation Panel and I am an elected member of the Governing Board of the Family Mediators Association.

The Hybrid Model of Family Mediation

Ian Walker Family Law and Mediation Solicitors offer what is called the “hybrid” model of family mediation. This uses the civil mediation model for family cases and is particularly well suited when there are complex financial issues. I also call this “Solicitor-inclusive mediation”.

The Traditional Model

With the tradition family model there are a series of meetings of around 1 ½ hours. Generally there are 3-5 sessions. The solicitors play no role other than they advise their clients as required between mediation sessions. After the mediation concludes they advise their clients on the final proposals set out in the “Memorandum of Understanding”. They prepare the final Consent Order which they submit to the Court and then assist with the implementation of the Order.

It is open to them to advise their clients that the proposals in the memorandum of understanding is unsatisfactory (if they believe it is), but it is clearly highly damaging for the family if the proposals in the memorandum unravel. There is potential for the Solicitors and Mediator to “brief” against each other, feeling that the other is undermining what the other is doing. When that happens, it is not very good for the clients!

Fundamental to the standard family model is that the mediator does not keep any confidences. All information is shared between the couple. There is a lot to be said for this. The clients have confidence that the mediator is neutral.  Particularly with children issues, the whole dynamic is about building trust and good communication.

A drawback is that that it can be quite slow, with often 4 weeks or so between meetings. Also it can be a challenge to ensure that those in mediation produce all the financial documentation that I and their Solicitors need. Whilst I, as the mediator can ask the clients to get Legal Advice, I cannot make them.

See our mediation pages for a full explanation. This model is well tested, robust and works well in most cases. This is particularly so when the mediator is experienced. It can also be adapted in different ways, for example co-mediation or shuttle mediation. We are conduct most of our mediation using this model and are very happy to do so. The point is that with everything it is imperfect and that sometimes there is a better alternative.

The Hybrid Model

With this model the mediator does keep separate confidences and only discloses to each side what the other authorises.  The couple usually attend the mediation day with Solicitors. Sometimes they also bring other family members or supporters, and accountants. Basically each brings the team required to enable them to achieve resolution.

Everything is done to prepare for up to a full day mediation meeting.  All attend with the intention of resolving the dispute on this day, and leaving with a draft Court Order.

The starting point is that the clients with their solicitors agree to mediate.

The mediator sends the agreement to mediate (and terms of business), which all sign.

The Mediator will meet with the Solicitors. Together they confirm the issues to be resolved and the information that will be needed to resolve them. They also agree who is likely to be needed to attend the mediation day.

A timetable is agreed.

The Solicitors then implement the timetable. This is likely to include preparing Form E’s, obtaining valuations, reports, disclosing documents, getting borrowing information etc. The Solicitors agree a schedule of assets and agree a bundle of relevant documents for the mediation. The Mediator is provided with this in good time before the mediation day.

The mediator will meet with the parties before the mediation day to ensure everyone is ready and in the right frame of mind and that all relevant/necessary information is available.

It may be that the mediator and couple will discuss/start to discuss children issues. Generally this meeting is a gentle meeting.

The Mediator arranges the venue for the day meeting and sorts out catering.

Each side has their own room and the mediator has a third neutral room. A day is allocated.

The day normally starts at 10 am and runs until 5 pm, with a working lunch.

The mediator holds joint and separate meetings with both sides. Discussions proceed until a deal is done. In complex cases there can be parallel discussions between each team’s solicitors and accountants or whoever. In complex cases you might have two mediators.

The mediator will only disclose what they are authorised to. The mediator keeps confidences with each “side”.

The advantage of this model is that the mediator gets to understand the true positions of each side and what each really want/need/can offer to achieve resolution.

All need to have absolute confidence in the mediator’s neutrality. However the basic model is robust and is arguably a more widely used than the family model, as it is the model used in all non-family law mediation. It is not at all “whacky”, but what happens most of the time in other mediation.

At the end of the mediation the Solicitors draft the final agreement.

It is quite possible to resolve a complex case within a month.

As with the traditional family model, this model can be adapted, for example if one is unrepresented. It can also perhaps better cope with situations where one has behaved abusively toward the other.

With this model the clients are supported all the way along and the involvement of the legal teams is integral to the process.

Advantages of the Hybrid model

Everyone has clear roles. It is less confusing to clients than Collaborative Law or related hybrids.

The Solicitors do what they are good at doing; advising their clients and collecting, collating and analysing information.

The Solicitors (together) identify what is needed to resolve the case and use the experts they want.

It is easier to include important third parties in the process (often a parent or new partner of one or more of the parties).

A drawback of the normal model is that the parties can still fail to settle because they are holding back from their bottom line, because they are waiting on the other to move first. In the hybrid model, the Mediator can more easily establish whether a case can genuinely be settled, and can assist in choreographing progress.

If the case does not settle, it is ready for FDR. Issues are at least likely to have been narrowed.

The Solicitors are not placed in an uncomfortable position where under the traditional model, they may be asked to give advice on what they feel to be a bad deal, after the deal has been done.

The clients feel better supported through the process.

If it resolves the clients will have a similar” feel good factor” as if a case resolved through a collaborative process.

It is quick.  A case could be resolved in a month or less. Really its as long as it takes for the solicitors to gather the information they need to advise their clients. I.e pension details, valuations , projections etc.

Disadvantages

It is more expensive than the traditional model.

It is less well suited to child contact issues, where a lot is achieved through the process and in the time between sessions. It is possible to use the traditional model for children issues, but the hybrid model for finances.

To be honest, we cannot think of much else to put here!

Cost of the Hybrid model

The cost of the  mediators time is similar to a 4 session traditional model mediation, The legal costs are greater, but the model is more capable of dealing with much more complex cases, with a greater prospect of settlement.

Conclusion

The hybrid model is a bit difficult for some family mediators to get their heads round, because it is “different”. But once you are a mediator co-skilled, the possibilities open up. Give me a call.

 

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