Henry Brown
Hybrid mediation is essentially a mixture of what might be called “traditional” mediation and other techniques. I am delighted this week to have renowned UK mediator Henry Brown give his view of how family mediation techniques can be merged effectively to improve the outcomes of commercial mediation. Henry writes:
At the ADR Group’s conference in Oxford in December, I expressed the view that we have become rather entrenched in our models of mediation practice, and especially in maintaining unnecessarily rigid distinctions between the civil-commercial and the family fields.
I have for years been using a hybrid approach that integrates the family and commercial models, and have found it effective. I now run training courses for the ADR Group qualifying civil-commercial mediators to work as family mediators and vice versa, in both cases also covering the hybrid (or “generic”) model.
The standard models are excellent, but we limit ourselves by not being flexible enough. For example, couples in family mediation have a series of periodical short joint meetings, allowing time for reflection and developments between sessions. While inappropriate for most civil-commercial mediations, a couple of pre-arranged sessions might sometimes be suitable, particularly where interim steps are needed (such as exploring options) and/or where longstanding, entrenched issues exist.
Something that I have consistently found useful is the preliminary meeting. In the commercial process, this involves meeting with the parties’ lawyers at an early stage for about 1-1½ hours and addressing a range of matters together. For example, in a substantial dispute about the termination of commercial agents’ contracts, I met both sides’ solicitors and we covered practical matters such as venue, timetable for the exchange of documents, and the creation of an agreed bundle. There were legal as well as factual and commercial issues in dispute, and we discussed the ways in which legal contentions would be exchanged and also what principles of law would be applied. Some accounting issues could be narrowed before the substantive meeting, and we agreed how this could be done. One side proposed bringing leading counsel to the mediation, which generated discussion about the rationale for this and led to a better understanding of their mediation objectives.
Preliminary matters are ordinarily discussed on the phone with each side separately, but where this can be done at a joint preliminary meeting, it can be more effective and provide a better springboard for the substantive day. The cost implications are relatively minimal: this is a procedure that warrants further discussion and development.
Do you think there is any place for preliminary meetings in commercial mediation? Post your comment below and join the debate.
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