What is mediation?
Mediation is a form of alternative dispute resolution. It is a process that allows parties to try to resolve issues in dispute and to work towards their goals in the presence of a trained impartial mediator. It is also an opportunity to gather or share information and to try and find a common way forward for both parties.
Mediation can be used in various types of disputes including family law cases in Scotland – most typically for parties who have separated and often with a child or children. It is often considered as an alternative to court proceedings.
Mediation is often a voluntary process. It can, however, also be ordered by a court in family law cases in Scotland. It is confidential and therefore, even if court ordered, a report will not be produced to the court.
How does mediation work?
After a referral has been made to a mediator, each party will have a separate intake appointment with their appointed mediator. The parties will have a series of mediation sessions over several months. Each session can typically last up to one and a half to two hours.
Before embarking on mediation, a mediator will have an in-depth intake meeting with each party separately. The intake sessions allow each party to raise any concerns that they have confidentiality with the mediator. It also allows the mediator to assess whether they consider that the case is suitable for mediation and, if so, whether there are any safeguards which need to put in place – for example, timing the arrival and departure of parties in order that they do not need to meet before or after the sessions.
Mediation discussions are confidential and will not be referred to in court unless both parties agree. If parties share financial vouching, that can be referred to in other forums.
Types of mediation
Mediation involves the parties either sitting in the same physical or a virtual room with the mediator. In some cases, parties may prefer shuttle mediation where they are in separate rooms and the mediator moves between the rooms.
In Scotland there is also ‘Child Inclusive Mediation’ where a child or children are involved in the mediation process. This is dependent upon the child’s age and level of maturity.
Is mediation suitable for me?
Yes, if you want to discuss and work to resolve any issues or disputes in an amicable and, often, more efficient way.
Mediation allows parties the time, space and flexibility to explore their difficulties and goals in one room with the help of a mediator. It can allow parties to resolve their differences in a constructive and pragmatic way.
Sometimes people do not wish to mediate as they do not have their lawyer present with them at the meditation sessions. The parties can, however, discuss mediation with their lawyers afterwards and seek legal advice during the process regarding the issues being discussed during mediation.
Whilst the mediation process can start at any time, it is recommended that mediation is explored at an early stage to allow parties to remain as amicable as possible. This is particularly important where there are children involved, and the parties will be co- parenting.
Costs
Mediators charge an hourly rate for the joint mediation sessions. Parties generally share the costs of the mediation sessions – usually equally.
Where do I find a mediator?
In family law cases, mediations are usually with a CALM mediator (from CALM Scotland) or with a mediator from an organisation such as Relationships Scotland. The parties’ solicitors usually provide them the details of mediators.
CALM Scotland mediators are all experienced family lawyers who have undergone extensive training before being accredited by the Law Society of Scotland as Family Law Mediators. Relationships Scotland have trained mediators who are non-lawyers.
A CALM mediator cannot give either party legal advice. They do, however, have the benefit of legal knowledge for matters concerning children and finances.
Outcomes
If parties can reach an agreement during the mediation process the next step will be for them to inform their solicitors of the terms of their agreement. The parties’ respective solicitors will assist in drafting a Minute of Agreement to set out the terms and take any other legal steps which the parties have agreed upon.
If you wish any further information about mediation, contact our family mediation solicitors.
Our Dawn Finlayson is accredited by the Law Society of Scotland as a Mediator. She is a member of CALM Scotland. We also have mediators in our Family team in England.
