A family lawyer’s view of mediation

Mediation is finally on the legislative programme in Scotland (see the previous newsletter). This

provides as good an excuse as any to review the benefits and challenges of family law mediation.

Family law disputes can be split into two broad categories. You have disputes between parents

about children and their care. And then you have disputes between spouses, civil partners and

cohabitants about the financial issues arising from end of these relationships.

Either way, you are dealing with relationship breakdown and all that that entails (lack of respect,

failure to communicate, breach of trust, power imbalance, opposing world-views etc.).

This is the challenge for family mediation. Some of these issues will never be resolved. And some

people will never want to mediate – it involves being in the same room (or in the case of shuttle

mediation, in very close proximity) as the person that you no longer trust. It involves confronting

the fact that your relationship has gone wrong. And it usually requires compromise. For some

people, they would rather have their day in court.

For those who are willing to mediate, what does it offer? It offers a safe space to try and reach a

creative resolution, responsibility for which lies at the door of those who made it. It is probably

cheaper than court too.

Mediation isn’t easy though and for family law cases the outcomes can be stark with little room for

manoeuvre. The children live with you or they don’t. And there is a statutory regime in place to

determine financial claims. There is perhaps less scope to reach a compromise than in, say,

commercial disputes.

Consider the issue of relocation: one parent wishes to move abroad with their child. The other

parent wishes the child to remain at home. In court, the outcome is binary: relocation permitted or

refused determined by what the court considers is in the child’s best interests. There would be a

clear winner.

In mediation, it would probably still end up with one parent “winning”, however, the parents should

have been able to tailor-make a decision which suits the needs of their family.

What’s more, the fact that this type of mediation cannot be referred to in courts allows the parents

to be really creative – they could try and put in place practical arrangements that the court would

never deal with. For example, the parents could put in place a schedule for the parent remaining at

home to spend extensive time with the child by arranging to meet halfway in a third country. They

could decide that relocation will only take place if holiday time with wider family is safeguarded.

The parents could also draft a script for how they communicate their decision to the child. Unlike

court, the possibilities are endless.

There can still be downsides to mediation. In mediation, the focus is not on what is best for the

child, but rather what the parents think is best (which may or may not be the same thing). There is

also no obligation in mediation for the child to be given the opportunity to express their view –

something which must happen in court.

Anecdotally, though, the parents who mediate tend to need less ongoing support as their children

get older than those who have had a decision foisted upon them by court. Perhaps the time is right

for mediation to take its place in the statute book.

John West, SKO Family Law Specialists