Hybrid Mediation – a great solution for couples seeking to resolve more complex family issues in mediation

23 January 2024

As part of Family Mediation Week 2024, accredited hybrid mediator and Edward Cooke Family Law Managing Director Edward Cooke looks at how hybrid mediation works - and how it has widened the scope of cases suitable for family mediation.

Reflections on Mediation and Hybrid Mediation

Qualifying as a family mediator in 2010, I soon recognised the positive force that mediation has to enable couples to resolve issues arising from their separation. In the first few years of my mediation practice, I helped dozens of couples resolve financial and children issues. For these families, this had the benefit of not only saving substantial sums of money that they might otherwise have spent on litigation and legal costs, but also enabling a non-confrontational, more constructive resolution of the issues they faced. 

Couples going through a divorce or separation often have children, so mediation’s benefits are not only those of enabling them to reach a more cost-effective resolution of financial issues (and an agreement on their own terms, rather than one imposed by a court) but also those in terms of ongoing parenting and communication. I often ask parents in the mediation room what sort of parenting relationship they would like to have in future. Whilst their relationship as a couple has broken down, they remain parents; one of the great benefits of mediation is to enable parents to rebuild their parenting relationship to the benefit of the whole family in the longer term.

However, one of the criticisms levelled at traditional family mediation has been that it is not equipped to deal with more complex, higher conflict cases. Certainly, in my first few years as a mediator, the majority of cases I mediated were with more cooperative couples, dealing with less complex financial resources. In my experience, where the financial resources were more complex or the parties’ relationship more conflictual, many solicitors have tended to rule out mediation as an option (and advise clients accordingly).

Over the last few years, however, we have seen the highly successful rollout of the ’hybrid mediation’ model in the UK – with over 80 mediators now trained in this form of mediation by Resolution, the nationwide organisation of family law professionals. In my experience, the great advantage of the hybrid mediation model is that it can be used for a far wider range of cases than those for which mediation has traditionally been used. Since qualifying as a hybrid mediator, I have dealt with a large number of cases using this process – including some very complex financial cases, but also cases in which the parties have not been able to communicate effectively when they have come into the process.

So, how does hybrid mediation work?

What is hybrid mediation?

Hybrid mediation combines elements of the family and civil models of mediation (hence the name). Unlike traditional family mediation, where the participants’ lawyers tend not to attend mediation sessions and instead advise clients between sessions, in the hybrid model the participants’ lawyers are often directly involved in the process.

Lawyers do not have to be involved in a hybrid mediation, and it is not the involvement of the lawyers itself that distinguishes hybrid mediation from the traditional model, as it is possible for lawyers to attend non-hybrid mediations too. However, in my experience, the parties’ lawyers are far more frequently involved in hybrid mediation, where they attend sessions with their clients, than in the traditional family mediation setting.

The key ingredient that distinguishes hybrid mediation from a traditional family mediation process is the mediator’s ability to hold private meetings with the participants and their lawyers, where the mediator can ‘hold confidences’. This means that one participant can explore options for resolution without this being passed on to the other participant; in turn, the mediator can get a better idea of what lies behind each participant's negotiating positions. The confidence will only be released by the mediator once a participant explicitly directs this. Crucially, however, the mediator cannot hold confidences over financial disclosure, which always needs to be shared openly.

The ability of the mediator to hold confidences in the hybrid mediation process can be transformative and, in my experience, is what makes hybrid mediation such a powerful way for couples to reach a resolution over far more complex disputes. Whereas, in a traditional mediation model, the family mediator works on the basis of full transparency, sharing all information that is given to him or her by the parties with the other person during the process, subject to the caveat concerning financial disclosure always been shared openly, the hybrid mediator’s flexibility to hold confidences can enable the mediator to unlock what can appear, at first sight, to be intractable disputes.

Holding confidences enables a hybrid mediator to see what lies beneath the negotiating lines, or what is behind what appear to be intractable negotiating positions, to reveal where there may be synergies, and where the parties may be able to reach a resolution. 

Greater flexibility makes hybrid mediation a great option for many more couples, including online and in separate room.

As a consequence of the greater flexibility of the hybrid mediation process, and the mediators’ ability to hold confidences, the process can be appropriate even when there are significant issues of power imbalance or high levels of conflict. Whilst hybrid mediation can involve participants attending in separate rooms or in one room, in higher conflict situations the participants (with their respective solicitors) often attend in separate rooms. The hybrid mediator shuttles between the rooms, so the process is even suitable for those who feel unable to sit in the same room.

The fact that the process can be conducted with the participants in separate rooms with their lawyers throughout means the process can suit not only complex cases and situations with high levels of conflict, but also situations where there has been domestic abuse (although the mediator will always screen carefully for domestic abuse and as to whether mediation can take place in this format) - or where one or other participant has a personality disorder.

Hybrid mediation can take place in person, but it can also take place entirely online: we have conducted many hybrid mediations entirely via Zoom and other video platforms. When the process is online, we allocate breakout rooms to the participants and their lawyers at the outset of the process. If participants prefer, we also offer hybrid mediation where one participant wishes to attend our offices in person with their lawyer, and the other prefers to attend online with their lawyer.

As a result, the process has no geographical constraints. We have acted as the hybrid mediator on cases where participants and their lawyers have been at different locations across the UK or, indeed, internationally.

What are the benefits of hybrid mediation?

There are many benefits to the hybrid mediation model, as I have already outlined; in summary, they include:

• Speed. Whereas a court process can take many months, or even years, a hybrid mediation process can be resolved within weeks. Meetings can be convened at short notice, particularly as the process can take place online.
  
  
• Cost-effectiveness. It takes less time and lawyers can be involved at mediation meetings, rather than advising between sessions. A hybrid mediation process generally costs a fraction of a fully contested court process. Crucially, it is intended to reduce conflict and stress, which sometimes, sadly, can be significantly heightened in a contested court process.
  
  
• It can be conducted entirely online if you wish, removing the need to travel to sessions in more formal settings. Participants can either attend remotely with their lawyer at their lawyer’s office and dial into sessions. Or they can dial in from the safety and security of their own home - without needing to visit and office or court room.
  
  
• It can be suitable for complex cases. Whereas traditional mediation has sometimes been seen as inappropriate for more complex cases, or cases with a higher level of conflict or abuse, hybrid mediation can be suitable. As such, the range of cases suitable for the hybrid mediation approach is far greater. I hope that a greater take-up of hybrid mediation nationwide will take pressure off the court system.
  
  
• It is bespoke. Other professionals can be brought into the hybrid sessions to assist the participants with particular issues. For example, a financial advisor (a financial neutral) can be brought into the process to help participants reality-test possible settlement scenarios, using sophisticated computer modelling tools. Similarly, in a case involving a child, another professional can be brought in to meet the participants’ children and sensitively ascertain their wishes, or help the parents find a constructive way forward with regard to communication and co-parenting issues.
  
  
• Flexibility in finding solutions – ‘de-siloed thinking’ - is another benefit. The mediator’s ability to hold confidences increases the chance that, if an impasse is reached, it can be unlocked through creative, constructive negotiations. If an impasse is reached, it is very straightforward to move into other forms of resolving dispute out of court to reach an agreement – such as Early Neutral Arbitration or Arbitration. Accordingly, even if hybrid mediation does not result in a full agreement being reached, it should not be necessary, in the vast majority of cases, to ask the court to determine the outcome.
  
  
• It delivers outcomes tailored to the participants’ wishes and needs. Above all, participants in a successful hybrid mediation can reach an agreement without this being imposed on them by a judge. The agreement that they reach will be one that they have crafted with support from the mediator, their lawyers and whichever professionals are brought in to support at the sessions. Participants can also take advice from a barrister between meetings if they wish to.

For more about Edward Cooke Family Law’s mediation services, please explore our mediation pages or contact one of our friendly and experienced team.