litigation & mediation: the hybrid method
This article is a follow-up to our series on the different ways divorce can be settled. This article was written by Daryl Er, an intern of OTP Law Corporation and Emelia Kwa, a trainee at OTP Law Corporation.
The hybrid method refers to instances where litigation and mediation are used as two parallel tracks to resolve divorces. Here, lawyers are engaged for not only the litigation track but also to represent parties as their mediation advocates in mediation.
At present, this hybrid method is already being used where parties have children below 21 years old. This is since after such parties have filed for divorce, they are required to go for mediation at the Child-Focused Resolution Centre (“CFRC”) before they can continue with litigation proceedings.
Even if parties do not have children, they can still make use of mediation if both parties consent to do so.
The hybrid method retains the same benefits as mediation where issues can be solved during the mediation sessions – cost and time-effective, interest-based dispute resolution with reduced conflict between parties (see the article on Mediation – link).
It also has several added benefits. First, it may help to reduce the number of issues being settled through litigation as there is a possibility that some issues will be settled before litigation begins.
Second, if mediation can be conducted amicably, it may set the tone for later litigation, making it less adversarial and emotionally draining for parties. Mediation promotes cooperative and non-confrontational discourse, and even if there are residual issues to settle through litigation, the collaborative spirit of initial mediation sessions may carry on into the litigation process to make it more amicable than it would have been going directly into litigation.
Finally, parties benefit from having the same legal counsel in both the mediation and litigation process if they so choose. Having the same lawyers throughout the entire process ensures that they are privy to the context and nature of proceedings, and are better able to serve the needs of the parties.
Conversely, there is also a possibility that information revealed during mediation may push parties towards litigation. For example, where parties’ expectations are on opposite extremes, they may feel like the mediation process will not achieve anything. Mediators may also offer an opinion on how litigation may be favourable to one party, thus emboldening that party to commence litigation if the other does not cede to his/her demands. Where mediation does not work out, parties may be left feeling like they wasted their resources, which may aggravate them.
Further, parties may be wary of what details to reveal during mediation sessions as litigation is still impending. This may hinder progress. They may be more concerned with potentially giving away legal tactics or positions on certain issues rather than if disputes can be resolved. The effectiveness of mediation is greatly reduced if parties cannot negotiate openly and honestly during sessions.
This method is more suited for parties in dispute over several issues which are particularly sensitive and contentious (such as custody over children, or high-value assets), but are open and willing to cooperate fully in order to solve some (or, hopefully, all) issues before litigating. The hybrid method is commonly used, with roughly 90% of cases going through with this process as it offers the best parts of both mediation and litigation.
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