As those working in family law will be aware, there has been a governmental and judicial push towards the increased use of non-court dispute resolution (‘NCDR’) over the past few years. The Government’s Family Mediation Voucher Scheme was launched in 2021 and offers up to £500 towards the cost of mediation for eligible cases involving private children disputes. It is a prime example of the state encouraging this approach of resolving disputes. The changes to the Family Procedure Rules and the introduction of the new pre-action protocol and FM5 form (where all litigants must explain what forms of NCDR they have engaged in or explain the reason for their lack of participation) in April 2024 is another example which extends to cases involving finances on a divorce and other family matters.

However, as the use of mediation is increasing (chiefly because of its inherent flexibility), a client’s understanding of the mediation product and the various forms it takes should be improving in line with this. It is important they are being advised by their solicitors as to the different types or formats of mediation that would be most suited to their situation (and it may not be suitable at all in certain cases). Here is a whistle stop tour of the various types of mediation available.  

The ‘traditional ’mediation model

This is likely to be what a client envisages when they think of mediation; both parties and the mediator in a room together discussing the issues. This might be in person but mediation can be also held virtually and, depending on the mediator, often takes place remotely on Zoom, Teams and even on WhatsApp. Usually there are multiple sessions that last one to two hours each.

This format can work for two people who are able to be in a room together and have a constructive conversation, assisted by a mediator. The more acrimony present, the less likely this format will work. The traditional mediation model is also not suited to people who have been victims of domestic abuse, coercive and controlling behaviour or who are traumatised from their experience of their ex-partner. Being in a room with them again is likely to result in an uneven power dynamic and could re-traumatise them.

Hybrid mediation

A hybrid mediation format is where the parties are accompanied by their legal teams and the session usually takes place over a full or half day. This format is often considered most akin to a civil style mediation where civil disputes are commonly negotiated and settled. The key difference in this type of mediation is the mediator can hold ‘confidences’ where a party provides the mediator with some information that is not shared with the other party.

The huge benefit of a hybrid mediation is clients are able to access legal advice in real time – this is essential if financial settlement negotiations are taking place as the mediator is unable to provide legal advice but may be less necessary where the issue is the arrangements for the child/children of the parties. Rather than delaying to the next session so each party can be advised in the interim, progress can be made swiftly. The drawback of this approach might be the cost as the parties will have to pay for their legal team and the mediator (which is usually split equally), so two sets of professional fees are incurred. However, the benefit of the format may outweigh the potential additional cost and there could even be a cost saving if a settlement can be reached e.g. one day hybrid mediation vs six sessions of a traditional mediation model with legal advice in between that would take much longer.

The Resolution website has a list of hybrid trained mediators here.

Lawyer assisted – is this not just hybrid?

A lawyer-assisted mediation is similar to a hybrid mediation as it involves the parties being accompanied by their lawyers. The key difference is the mediator is unlikely to be able to hold confidences as they do with the hybrid model as specific training is required for this.

Child inclusive mediation

Sometimes pronounced CIM (phonetically SIM), child-inclusive mediation is where the mediator will speak to the children who the dispute concerns and inform the parties/parents what their child or children said. It can be helpful for the parties to hear someone neutral like a mediator explain their child’s point of view and this can assist with opening the pathway to compromises.

Shuttle

A shuttle mediation can be held where the parties do not wish to be in the same room together, be that physical or virtual. This format is understandably better for more contentious matters or where one or both of the parties are worried about the emotional impact of being in the same room as the other party (e.g. ex-partner or ex-spouse) as that can be a painful experience which distracts them from the discussion. The downside to a shuttle mediation is that sessions will likely take longer as the mediator will ‘shuttle’ between the parties, so progress will be made at a slower pace than if everyone was in a room together. You can have a lawyer-assisted shuttle mediation or hybrid mediation but if this is a traditional mediation without lawyers present, the clients may feel they are spending a lot of time alone which can be disconcerting.  

Co-mediators

Finally, a useful way of bolstering a discussion in a mediation may be to have co-mediators; i.e. two mediators. There is of course the added cost of a second mediator but this can be helpful in having a more balanced dynamic; with one mediator and the traditional model there are three people in the room and it can be easy for a party to feel the mediator is siding with the other party and there is a ‘2 against 1’. The second mediator stops this from happening and this is a great option for disputes involving parties where there may be a power imbalance. A co-mediator could also be brought in if they have specialist experience, such as being a family therapist.

For more information on mediation and the other forms of non-court dispute resolution, get in touch with us at mail@burgessmee.com

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