Fiona Read is a partner and an experienced mediator in our family team. She shares her insights with solicitors using hybrid mediation.
As hybrid mediation is becoming increasingly popular as a means of resolving disputes, here are my top three tips for solicitors in order to to get the best out of hybrid mediation for your clients.
1. Work collaboratively with your mediator - consider them your ally to help advise your client in the mediation
There is no need to showcase your advocacy skills. Hybrid mediation is not like being in court where you have to convince the judge by making good submissions. You can formulate reasons for a position with your client and the mediator present. This is high-level negotiation. Before the mediation starts, you will have advised your client on the legal issues and merits of the case. During the course of mediation, you will be adjusting your advice as proposals emerge and helping your client understand what is being suggested. This is not intended to be combative. It is an explorative process.
2. Allow lots of time for a hybrid mediation session
Hybrid mediation takes longer than mediation without lawyers present, because the mediator is frequently going between the parties in separate rooms. Realistically three hours is a minimum. Bear in mind that your client will need time to absorb and consider offers before giving instructions. Whilst we as professionals are used to assessing settlement proposals quickly, our clients are not used to it and there will be lots of emotions in the room. Take on board that they may not have seen or spoken to their former partner for some time and they may feel very upset, angry or scared. They may not want to appear to lose face if they compromise, so your client handling skills will be needed and you should allow time for this.
3. Be creative
Think outside the box! You and your client may have reached an impasse with your counterparts by the time hybrid mediation starts. This may be for all sorts of reasons such as; no agreement on the legal position, disputes on disclosure or valuations not agreed, to name a few. Put these arguments to one side in considering how to resolve the issues and consider what a holistic and fair outcome looks like for both sides. Weigh up with your client the cost benefits of a compromise. Remember that everything discussed in mediation is without prejudice, so there is nothing to lose in discussing options. Your legal and other arguments will always be there if the case does not settle in mediation.
In conclusion, you do not have to spend vast periods of time preparing for a hybrid mediation session, unlike going to court. Nor is it necessary to have a barrister attend. Hybrid mediation is a focused discussion with everyone present. I believe that it will become far more normal to resolve disputes in this way in future than by court proceedings, and solicitors should be at the forefront. So what’s not to like about it? I would encourage any solicitor who has not done it before to give it a go.