Resolving complex and high conflict cases out of court: an introduction to “lawyer-assisted” or “hybrid” mediation (Part 2)

In Part 1, I explained what lawyer-assisted and hybrid mediation is and demonstrated in a video role play the first part of a mediation meeting. In Part 2, I am going to focus on what happens at a lawyer-assisted or hybrid mediation meeting, and then show how our video role play mediation concluded.

Before the mediation meeting…..

Commonly the process will start with a no obligation meeting between the mediator and the lawyers by phone or on Zoom to discuss how best to proceed, and what further information or evidence (eg valuations, pensions report etc) will be needed before the mediation can take place.

Financial and factual information will be exchanged, and either agreed, or areas of dispute identified to be addressed in the mediation.

The mediation agreement will be signed, the mediator’s fee agreed and paid on account, mediation summaries will be exchanged (identifying the issues and areas of agreement) and the practicalities agreed. This may include where the meeting will take place, who will be present on the day and in joint meetings, and any reasonable adjustments needed, how everyone should be addressed and anything else to make the process run smoothly.

On the day of the mediation….the introductory and exploratory phases

Usually there will be three rooms available if in person, so each of the couple can meet with their lawyer and the mediator separately, with one room where everyone may meet together if that is appropriate. Sometimes it isn’t; for example if there has been domestic abuse or one of the couple is unwell.

The mediator manages the process and will commonly invite each of the couple (or their lawyer) at a first meeting together to explain what they hope to achieve and what the issues are.

Then the mediator will meet with each separately to build trust and rapport with each, explore the issues, start to identify underlying concerns and objectives, identify options for resolution to encourage “out of the box” thinking, and explore areas for potential compromise.

The bargaining phase

This is crunch time; the mediator will encourage, cajole, challenge each of the couple and their lawyers towards a compromise, in a series of separate and joint meetings as the mediator thinks most appropriate.

Each of the couple, with their lawyers, will need to consider their “BATNA” and “WATNA” (best and worst alternative to a negotiated agreement); how much will it cost to continue fighting, what will the emotional and psychological cost be to the couple and any children if an agreement isn’t reached, and how long will it take to resolve matters if a compromise isn’t reached.

With the benefit of knowing in confidence the views of each of the couple, the mediator may ask “what if” questions. For example, what if the other person were to propose a certain outcome – how would that work?

The mediator will also encourage each of the couple to give permission to the mediator to share with the other details of compromises they are prepared to make at the time the mediator thinks will be most helpful.

Slowly the discussions should move towards consensus.

The concluding phase

Once the mediator is confident that agreement either has been reached, or is within reach, or less commonly will not be reached, then usually there will be a concluding joint meeting.

If there is or will be an agreement, this meeting will tie down the details, iron out any areas still requiring agreement, and then the lawyers will draft the appropriate document; eg draft order or heads of terms, to be signed by the couple.

If there is no agreement, then the meeting will be used to record the progress made and the remaining issues, and to explore next steps.

In the last clip of our video role plays, you can see how this final meeting may work. The mediator already knows what concessions each of the couple is prepared to make, from earlier separate meetings, and brings everyone together to finalise the agreement.

If you think lawyer-assisted or hybrid mediation might be for you or you just want to find out more do contact our mediation team for an informal chat. We have specially trained mediators who are qualified to undertake lawyer-assisted and hybrid mediations and have a wealth of experience to draw upon. 

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