In part three of our look at how best clients can use the new no-fault divorce legislation to try to remove acrimony from the process of separating, this article will talk a little more about ‘hybrid mediation’.

Although hybrid mediation sounds like an extension of mediation, it is actually a much more relaxed alternative. With no-fault divorce hopefully setting the stage for a much less confrontational separation, couples can carry that through and springboard into this relatively new mode of dispute resolution.

When mediation was introduced in the 80s and 90s, those who devised the scheme thought carefully about what it would look like. It was felt that family mediation would lend itself to shorter sessions with the mediator than in the civil format, and that lawyers did not need to attend. The idea was that there would be a series of sessions between one and two hours in length (most mediators say 90 minutes is the optimum time for a meeting) and that these would be separated by periods for reflection or taking advice.

One of the cornerstone principles of mediation is that there is transparency between the parties and the mediator. The parties cannot generally say things in confidence to the mediator that he or she cannot then pass on to the other party. Hybrid mediation is an attempt to reset some of those principles. Instead of looking at a fixed process with “rules”, we look at what suits the parties best. The introduction of flexibility around the length of the session, the presence of a legal representative to support a party through mediation and the possibility of the clients speaking individually and confidentially to the mediator (which can help with making breakthroughs) introduces three important new elements to the mediation process.

For some clients, the idea of sitting with their spouse without support is intimidating. The pandemic has, to a large extent, accelerated the idea that mediation can take place via video link. In my experience, this can be less effective as you lose the potency of three people sitting around the table. However, considering as a mediator at the gatekeeping stage what the arrangements will look like and in particular which of the various models should be introduced is a real benefit to clients.

I have undertaken hybrid mediation sessions with lawyers present where clients have been able to deal with matters quickly and cost effectively without the need to keep coming back for another appointment.

As a qualified hybrid mediator, I use what I learnt on the training course as part of my everyday practice. A common trend I’ve witnessed is that one of the parties will show I uncertainty during the mediation process. Having legal representatives attend does not need to increase the tension, rather it can actually have the effect of relaxing the parties. The mediator is still in control of the process and will explain to the legal advisers that they are not there to advocate for their clients as lawyers but to support them and support the process.

If you would like further information on hybrid mediation, please contact the author at peterburgess@burgessmee.com.

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