Hybrid Mediation and Financial Neutrals

Mediation is probably the most effective, quickest, cheapest and most satisfying way of resolving issues relating to the breakdown of a relationship. Hybrid mediation, a form of family mediation is an innovative, progressive combination of family and civil models of mediation.

What does Hybrid mediation involve?

One more of the following:-

• The mediator can bring other family professionals and experts into the process with the agreement of the parties, to help deal with complex and difficult situations such as accountants, valuers, independent financial advisers, psychiatrists, independent social workers.
• The mediator can bring in the parties’ lawyers to help advise and support in complex and difficult cases.
• Engaging in shuttle mediation where the mediator spends time with each party on their own enabling the opportunity of exploring issues and settlement proposals in greater detail.
• The party’s lawyers join in part of the process, which is suited to high conflict or complex cases, as it facilitates the inclusion of lawyers directly into the process to advise and guide. With the support of their lawyers, the parties are helped to focus on the issues, explore the options and formulate proposals for settlement.
• Mediation and dispute resolution can be face-to-face, or online via video conference and so there is no geographical barrier.

The advantages of hybrid mediation

• Hybrid mediation can be particularly effective when there are certain safeguarding issues and where one party does not feel comfortable being in the same room or same Zoom screen as the other. Also, where there is an imbalance of power between the parties to the mediation or another reason why either person finds it hard to have a voice. Screening and safeguarding remains extremely important.
• It enables each person to explore options with the mediator in greater detail without feeling they have over-committed.
• It enables other professionals to use their skills, knowledge and solutions which makes the whole process better informed and more likely to achieve workable, fair settlements.
• Hybrid mediation can be undertaken before any court proceedings are considered, but also if a parties find themselves already in the court process but want to achieve a settlement outside, away from the stress, delays and costs of litigation.
• Hybrid mediation is far quicker than the court process and if preparation is undertaken beforehand can take place over the course of a day, or series of pre-booked sessions where parties can choose to have their lawyers present in the process avoiding delays between meetings whilst they take advice, and the lawyers can draw up the consent order straightaway once the proposals are agreed.
• More cost-effective: being actively involved in the process means parties do not have to repeatedly update their lawyers with the progress of the discussions; it reduces correspondence and the risk of misunderstandings or disagreements between the solicitors.
• It reduces conflict. Separate meetings mean heavily emotional joint meetings can be avoided thereby enabling parties to focus on the issues and outcomes in a calmer and more rational way.
• Parties are empowered and supported. Hybrid mediation provides a safe and supported environment for people who might not otherwise be willing to mediate.

• Increases certainty of outcome. As lawyers can be more directly involved in the process and are on hand to advise with the full knowledge of the issues and direction of discussions, there is less risk that parties may change their minds as can happen when advice is sought by parties in between meetings. The parties choose to what extent their lawyers are involved, less or more.
• Confidential and private. A major advantage of mediation is that it is private and confidential. So, no one else can access the documents or hear what is being discussed. This is unlike court proceedings, where even in family cases, the press can have access and transparency rules may involve details of the history and issues being made public through national or local press or via social media.

Who are hybrid mediators?

Hybrid mediators are either dual qualified family and civil mediators, or those who have undertaken specialist training with Resolution to enable them to utilise both family and civil mediation techniques and procedures. The training enables a hybrid mediator to be more flexible and innovative with the parties.

What type of cases are suitable for hybrid mediation?

Hybrid mediation can deal with issues between a separating couple relating to finance, children or, indeed, both.  In relation to finances, issues such as the level of maintenance, how assets are distributed on separation, longer term support for the children and how pension assets are treated can all be dealt with within a hybrid mediation setting and often with the benefit of other expert input.

In relation to children’s issues, hybrid mediation can help couples decide where the children will live and how much time they will spend with each of the parents, but also issues such as internal and international relocation or schooling.

How long does Hybrid Mediation take?

Mediations often involve three to five sessions and such sessions normally last one to two hours each.  However, if sessions are properly prepared for and information and document­ation is to hand then it can be possible to set aside a whole day for a mediation to take place, with a view to achieving a settlement at the end of that day.

Going to court should be a last resort to resolve most family disputes. The pandemic has exacerbated the significant delays in the adjudication of many family cases. The courts have made clear that all parties, legal advisers and the judiciary should continue to have express regard to all forms of non-court dispute resolution.

Confidential one to one meetings – what are the benefits?

A party can discuss things with the mediator in a way they might not feel comfortable doing if the other person were also present. The parties can explore options with the mediator without commitment or raising expectations. The exact things that are kept confidential are specific to each party and situation, and normally include the reasoning behind options for settlement or the people’s hopes and concerns. There are things the mediator cannot keep confidential such as financial information (e.g. the existence of an asset), or matters relating to the safeguarding of children.

Financial Neutrals

Separating couples considering divorce are often surprised to learn they have process options other than going to court. In mediation and collaborative options couples find real value in working with a team of professionals including their lawyers, mental health professionals and financial professionals. Financial neutrals are often used successfully in hybrid mediation.

What is a Financial Neutral?

Family finances are an important issue in most divorces. The change from one home to two homes may result in doubling family financial obligations. A financial neutral, who is a member of the mediation and dispute resolution process that assists the parties in gathering, organising, and analysing their financial information to assist in developing creative financial solutions that may not be available in litigation.

If instructed to do so one of the services that a financial neutral can provide is considering the existence of marital assets and sources of income. When a party has a concern about what assets exist or are owned by their spouse, the financial neutral can be asked, with the agreement of the other to conduct an investigation. This can allay concerns and provide certainty.

The financial neutral also educates both parties regarding their financial profile which can be especially helpful to couples in making decisions regarding the division of marital property and future support. In addition, the financial neutral will assist the parties in creating a budget for their future.

What does a Financial Neutral do?

• Meets individually with each party to begin the information gathering process
• Assists the parties in organising their financial information
• Assesses the party’s current budget and projects their future budgets as will be post separation.
• Educates the parties regarding their family finances.
• Explains the nature of each investment. Spend more time with one party ensuring they are up to speed with understanding the finances and possibilities.
• Assists in the division of marital assets and debts
• Generates options for the division of retirement assets and pensions
• Values any individually owned or jointly owned businesses
• Provides tax advice and projections
• Projects maintenance and child support needs over time
• Analyse the tax benefits or detriment of decisions and consider alternative ways of achieving outcome that reduce tax to the overall benefit of both.
• Plans for the funding of educational expenses for children.
• Any other financial planning needs raised by the parties during the process

Advantages of using a financial neutral

They will have tried and tested software that is able to predict the best predictions of financial outcomes for now, 5- and 10-years’ time and into retirement. The software is interactive and can show different predicted outcomes at the click of a few keys.

Using a financial neutral in the process should eliminate the need for each party hiring their own expert and avoids the ‘battle of the experts’ which plays out in many divorces and greatly increases cost. The financial neutral’s role preserves family resources so that the parties’ assets can be better utilised for the evolving family.

Taking the appropriate advice is essential, because financial matters will form a part of your negotiations; regardless of the divorce or separation process that is selected.

Other Neutrals

Other neutrals include :-

• Coaches and therapists to assist in people who are suffering emotionally and mentally from the process.
• Communication experts to help provide understanding as to the effect of conflict upon children but also strategies to ensure communication is effective and safe going forward.
• Accountant and other tax experts.
• Valuers of properties, companies and other assets.
• Pension experts and valuers.
• Independent social workers who can assist in obtaining children’s views and offering advice as to the best arrangement there can be for children.

It may seem that adding another layer of professional fees can simply increase the costs of separation unnecessarily. A neutral will only be brought in where there is a clear need and benefit and all parties agree. Usually, however, such expert neutrals have shown time and time again that they assist the process to reach conclusions more quickly and fairly.

How do I Arrange Hybrid Mediation?

If you have a solicitor, they can help you find a mediator trained in the hybrid model, or you can self-refer. The resolution website has a list of mediators including those trained in the hybrid model. The mediator will talk you through the steps to getting the process started.

What are the Costs Involved in Hybrid Mediation?

Hybrid mediation is very cost effective. The costs of the mediator in hybrid mediation are generally met equally by the participants but can be in whatever proportions they decide. Each party will be responsible for their own lawyer’s costs. The lawyers’ direct involvement in the process reduces the need for people to liaise with their lawyers between meetings. It reduces the need for inter-solicitor correspondence. Outcome documents can be produced immediately.

David Emmerson

Partner Anthony Gold. Accredited and hybrid trained family mediator.  Collaborative practitioner. Deputy District Judge specialising in complex financial remedy and children cases. Solicitor Advocate.

david.emmerson@anthonygold.co.uk

• ‘Entirely sensitive to the fact that in family law, the relationships often have to continue when the lawyers leave’ – Legal 500
• Clients say: “He is a lovely man (incredibly kind and supportive) and very well respected as a lawyer. He is one of the leading lights of Resolution, an organisation committed to handling family break up in as conciliatory was as possible – but he has real steel about him also, so I would totally trust him to protect a client’s interests if the going got rough.”
• Legal 500 says the ‘skilled’ David Emmerson ‘puts clients at ease’. He ‘is an experienced problem solver: calm and reassuring. He gets to the issues quickly whilst holding the client’s confidence. He is a skilled mediator who is able to combine his extensive legal knowledge with the empathy and impartiality needed to mediate complex cases’.
• Anthony Gold has a number of family accredited mediators and 3 hybrid trained mediators

Family Mediation Week takes place from 17 January 2022 and Anthony Gold is offering free mediation information meetings (MIAMS) for the whole of January.  For more information please contact either Michelle Howarth at mih@anthonygold.co.uk or Jordan Ridley at jri@anthonygold.co.uk or by telephone on 020 7940 4000.