Public Funding for ADR in Family Disputes - Ashley McCann, Senior Solicitor, Gillespie Macandrew
On 25 August 2020, the Scottish Parliament unanimously passed new legislation that aims to improve how courts make decisions in relation to the contact and living arrangements for children. The Children (Scotland) Act 2020 seeks to amplify the voice of the child in the decision making process and represents a commitment encouraging ADR in family disputes. The Act can be found here.
As things stand, there is currently no public funding for mediation in Scotland and the wait for voluntary services tends to be long. The result is that people who are unable to resolve their dispute amicably and cannot afford to pay for mediation or any other form of ADR have no option but to raise court proceedings, a costly and often bruising process that puts the decision in the hands of a third party who does not know the child. The Children (Scotland) Act 2020 provides that Scottish Ministers must set up a scheme providing financial assistance to those who wish to resolve their dispute by alternative means, or to provide funding through Scottish Legal Aid.
This is a positive development although it is not yet clear what the procedure will be or which methods of dispute resolution will be funded. What we do know is that funding will only be provided where the dispute resolution procedure obtains and has regard to the child’s views in the same manner that a court must do.
The other good news is that the Scottish Ministers must arrange a pilot scheme whereby parties to court proceedings must attend a meeting where they will learn about the alternative ways of resolving disputes, unless it would be inappropriate for the parties to attend such a meeting. The hope is that this will raise public awareness about processes such as mediation and encourage families to resolve disputes in relation to a child in a more conciliatory way, for the benefit of the child and for their co-parenting relationship.
Our thanks to Ashley McCann for this report.