Separation or divorce are labels attached to the end of a relationship.
But the end of a relationship between partners with children does not signal the end of a co-parenting relationship, except in unfortunate circumstances. Parents must continue co-parenting and making decisions about their children: mediation is often helpful to assist parents do this together.
It can often take a few weeks or months to deal with finances and financial matters. Mediation can also assist in regulating urgent or interim arrangements until the regulation of other and more substantial financial matters to help ensure both parties have enough to manage costs.
Taking the first step towards a separation is often the catalyst for the beginning of a new family dynamic. Mediation can assist in the process and help build a foundation for that new dynamic.
Mediation: a constructive alternative to adversarial dispute resolution
Why choose mediation? Because how issues arising from a separation are approached can have a lasting impact on all family members, not just the parents. The voluntary process involves discussions facilitated by an independent and impartial mediator.
In Scotland, specialist lawyer-mediators accredited through CALM Scotland and the Law Society of Scotland combine mediation skills with a deep understanding of family law. Albeit they can provide only general legal information to both within the process, they cannot advise the parties either jointly or individually. Each party to the process can and often should obtain independent legal advice throughout the process. The mediator will help the couple explore options and consider possibilities, but they do not decide the outcome or compel either person to settle. A mediator can help parties reach and facilitate arrangements.
What can be mediated?
It’s not just where children will live or how assets will be divided that can be discussed at mediation. Almost any matter the parties wish to explore can be discussed. Typically, common areas where mediation can help couples resolve issues will include:
Communication: poor communication is often a central theme in mediation. The mediator can look at how and when things go wrong, how to deal with different understandings, and help a couple agree a communication style or method going forward.
Children’s arrangements: residence, contact, shared care, holiday schedules, handovers, and arrangements for birthdays and Christmas can be considered. Parties can also discuss what children should be told, how and when, to ensure a consistent approach in each household. The focus is welfare based.
Education and upbringing: school choice, private school fees, extracurricular activities, medical decisions, religious upbringing and how parents will communicate about important decisions.
Financial separation: division of the family home, savings, investments, shares, pensions, businesses, vehicles and personal possessions.
Interim financial arrangements: aliment or maintenance for a spouse or child depending on who lives where and with whom, payments towards the mortgage and household bills, contributions to school fees, university costs and other expenses associated with raising children such as childcare and costs of extra-curricular activities.
Practical arrangements: transferring property, managing joint accounts, allocating debts and agreeing how unexpected costs will be met.
How does the process work?
Mediation begins with separate preliminary meetings known as intake sessions. These allow the mediator to assess whether mediation is suitable, identify any safeguarding concerns, explain the process and look at the issues each party wants to discuss within the process. If appropriate, joint meetings then take place.
Discussions are confidential and conducted on a without-prejudice basis. Both parties sign an agreement to mediate which ensures that tentative proposals made during mediation remain confidential to the parties and may not be referred to in later court proceedings: this encourages open discussion with a view to exploring a range of possible options and outcomes, without being bound by them until a final written separation agreement is concluded.
Giving children a voice
Child-inclusive mediation can add another valuable dimension. With both parents’ consent, and the child’s own informed agreement, a suitably trained mediator can meet a child separately to hear their views and feelings about proposed arrangements.
A teenager might explain why frequent changes between homes are unsettling, why a particular handover causes anxiety, or why maintaining friendships and school routines matters more than either parent realised.
The mediator can communicate the child’s views to the parents with the child’s consent, subject to safeguarding considerations. The child does not decide the outcome: responsibility remains with the parents. The purpose is to help the parents make better-informed decisions in their child’s best interests. This approach is not suitable for every family and requires careful assessment.
Mediation compared with solicitor correspondence
Traditional solicitor correspondence remains essential in many cases, particularly where legal rights need to be protected or positions clarified. However, repeated letters exchanging proposals and counterproposals can entrench disagreement, increase costs and leave the parties communicating through representatives, rather than addressing the underlying issues together.
Mediation offers a different route: a structured conversation in which both parties can explain their concerns, explore options and retain control over the outcome. However, it’s important to note that mediation may be unsuitable where there is domestic abuse, intimidation, a significant power imbalance, urgent protective action needed or a refusal to provide necessary financial information. In such circumstances, solicitor negotiation or court proceedings may be more appropriate.
Potential benefits | Possible Limitations |
|---|---|
Direct discussion can reduce misunderstandings and help rebuild communication. | It may be unsuitable where there is domestic abuse, urgent protection issues, serious power imbalance or a legal determination is required. |
If there are concerns with direct interaction, shuttle mediation can be considered. | Direct interaction with former partner generally in the same room is not always an option. |
Bespoke solutions can reflect the family’s priorities and practical needs. | Mediation cannot guarantee agreement or compel financial disclosure. |
Resolving issues earlier may reduce delay and emotional strain. | Both parties must be willing to participate; it’s a voluntary process so neither can be compelled to agree. |
A constructive parental relationship can reduce future disputes. | Parties still need to work hard at communicating well after the mediation process has concluded. |
It will often be cheaper than traditional negotiation and much less expensive than court. | Independent legal advice remains important, and court intervention may still be necessary |
Not convinced yet?
The real advantage is flexibility. Rather than simply negotiating over a percentage of assets, for example, couples can explore whether one retains the family home while the other receives a greater share of investments, or whether pension provision can be balanced against immediate capital needs.
Parents might agree that school fees will be shared equally or proportionally, or they may decide to create a detailed parenting plan that anticipates future changes as children grow.
The mediation process allows separating couples to retain control over decisions while ensuring that any proposed settlement is considered against the relevant Scottish legal framework. Such tailored solutions can be difficult to achieve through a rigid, positional approach to negotiation and although it offers a structured way to negotiate, it does not remove the need for independent legal advice.
It also offers an overall cost saving – parties pay a share of the fee for one lawyer-mediator, rather than each paying for separate representation. Yes, another solicitor will need to draw up the separation agreement, but the nitty gritty of what is put in that agreement has usually been decided at less than the otherwise overall cost.
Mediation can be difficult.
It’s not taking the easy option.
It’s confronting issues directly and trying to resolve them directly, with help, rather than allowing a third party to make decisions for you and your family.
Most importantly, mediation can help families move forward with greater clarity, dignity and confidence, while keeping the focus on what matters most: a workable future for everyone involved.
Need any further information?
Learn more about family mediation in England & Wales.
If you would like an informal chat on how the Scottish lawyer-mediator process can help you, then please contact Caroline Smith, Partner, in our Glasgow office for more information or visit our Scottish family law page.
