How the Hybrid Model of Family Mediation works for Solicitors

Not all Mediation is the same.

The Problem with Family Mediation for a Solicitor.

You are acting for a client for divorce or TOLATA.

There are reasonable finances.

You have not been able to resolve through negotiation, or feel that the case might be suitable for mediation anyway.

You make a referral to mediation or for MIAMS

Your client decides to mediate

You maybe see them once or twice before they come back to you with a memorandum of understanding.

You are concerned that the financial disclosure is inadequate.

You may feel that the case is just too complicated for mediation.

You cannot make complete sense of the “Agreement” that has been reached, or it will be difficult or impossible to implement or it is against what you would have advised or did advise

The Mediator may have brought other professionals into their process to assist, but they are not people that you would have used.

What can you do?

Do you try to renegotiate? Or unpick the “Agreement”?  Do you seek the missing disclosure? Do you write disclaimer letters to your client? Do you vow never to use the mediation service again, but end up doing so?

How do you deal with your professional negligence risk, your client and the other solicitor and the mediator?

Is your client is unhappy to pay you for much more work?

You have sent a good case away, and you have been left with an unsatisfactory outcome, in a number of ways and your fees have been minimal. To top things, you are the one at risk of negligence, not the mediator.

Should you have used Collaborative Law?

You like the idea but struggle to convert the other party (go and see one of my mates, and we can sort you out? Would you?)

You feel uncomfortable in the role of collaborative lawyer. The other lawyer says something you are unhappy about, but don’t feel that you are able to challenge them in the way you would like.

You just don’t gel with the other collaborative lawyer

Your client is uncomfortable with the idea. You have forged a good relationship. You/they don’t want to run the risk of the process not concluding with settlement.

But we are stuck with MIAMS.

You have to send clients off to someone

You know that not all mediators are the same. There are lots of inexperienced mediators out there. Maybe you are also one yourself.

You cannot trust your client to take your advice between meetings or to follow it.

You cannot trust the mediator to do proper job.

You have a billing target, but you are left with the “crumbs”  or if the case has unravelled you are sorting out a major mess and have to explain to the client why you were not to blame in some way, when you talked up the idea of mediation to them!

But you do feel that cases should resolve. You are probably a member of Resolution. Sometimes they just need something extra to break the deadlock.

The problem with the normal model of family mediation from a mediator’s perspective (for money cases)

As a mediator, you want to mediate. Chasing financial disclosure is a real pain. Clients often do not do what they are asked. They may not provide documents in good time before sessions, often what they bring is incomplete.

If you cancel sessions because of non-disclosure, or challenge non-disclosure too much, you run the risk of the mediation unravelling

You are uncomfortable when the assets are more complex, particularly around pensions (which require valuations) and businesses or the self-employed.

You don’t really have the time to go through financial documentation in minute detail.

You send a couple to get legal advice and one or both doesn’t do it!

When it seems that the advice each client is getting is way apart, and you ask them to get answers to specific questions the solicitor refuses to put it in writing. (It can sometimes be helpful to compare advice to demonstrate the uncertainty of the law)

It can be difficult to maintain momentum when meetings are several weeks or more apart.

You can feel that the Solicitors are undermining your process. (Whether intentionally or unintentionally)

The key to resolving the mediation may be one or more third parties (parents, partners, business partners), but it is difficult to include them in your mediation process.

You feel one or more is holding something back or really does need to be challenged about an unrealistic position by their Solicitor.

Whilst the couple may now be separated, there may have been issues between them, which mean that one will not be in the same room as the other. (Shuttle mediation for finance is extremely laborious).

There is another way!

The Solution; The Hybrid Model of Family Mediation (Solicitor inclusive family mediation).

Background.

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 13^th 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.

I am happy to be corrected, but I think that I am the only Mediator in Devon, trained by Henry Brown in the Family, Civil and Hybrid models of mediation.

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”. The Solicitors prepare the final Consent Order which they submit to the Court and then assist with the implementation of the Order.

It is open to the Solicitors 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 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 the mediation pages of our website 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 can arrange a neutral venue for the day meeting and sort 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 to the other side 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. There is no need for a Memorandum of Understanding at all

It is quite possible to resolve a complex case within a month. (the case takes as long as is needed to prepare it)

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. (You don’t need to have joint sessions at all; the vulnerable client is well supported; it is much more able to deal with situations when there has been abuse).

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 choose 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).

The Mediator just mediates. The mediator doesn’t get hindered by case management (which can undermine their role).

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. You can have a MIAMS 1 form at the end of the mediation day.

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 the same “feel good factor” as if a case resolved through a collaborative process or the usual family mediation model.

It is quick.  A case could be resolved in a month or less. Really it’s 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.

The Solicitors are less at risk of negligence than if they “go along with” an unsatisfactory usual family mediation.

There is a clear process. Unlike normal negotiations or Collaborative Law, it is much less open ended, and if you wish it can be packaged as a fixed fee. Potentially you could bill this upfront.

Disadvantages.

It is more expensive than the traditional model. (or is it? Not if mediation fails or gives a bad outcome. You will probably, usually do some work on disclosure/negotiation before you make a referral to mediation.)

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!

In fact, clients often worry about going off to mediation disarmed from their Solicitor. This does not happen with the hybrid model. It is much more purposeful and focussed.

Cost of the Hybrid model.

The cost of the mediator’s time is similar to a 4 session traditional family mediation model, which is how long many financial mediations take anyway!

The Mediator has a easier to manage process and benefits from faster turnover of costs and less prospect of the case not resolving.

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.

Civil Commercial Mediators will find the traditional family model strange.

Mediation is an adaptable process and can be modelled to suit the complexities of your case.

As an experienced family mediator and as the person who was responsible for setting up the original Collaborative Law training in Devon , this is my preferred model of mediation for financial cases.