YMG Guest Blog - The Rise of Family Mediation in Scotland
Recent developments within the family law arena, including the introduction of the Children (Scotland) Act 2020, mean that the benefits of mediation to resolve family law disputes are on the rise in Scotland. This makes it a very exciting time to be starting my career in family law at SKO.
Following on the back of the Family Justice Modernisation Strategy in 2019, the Scottish Government is keen to promote the use of mediation to help families resolve their disputes and so the 2020 Act included provision for the Scottish Government to set up a scheme to make funding assistance available so that individuals can meet the costs of alternative dispute resolution procedures in relation to child disputes and also potentially put in place mandatory meetings on alternatives to court.
During my diploma in professional legal practice, I completed the mediation elective which was the first time I had come across mediation in a legal context. Although part of the course was to facilitate and engage in fictional mediations, it still was very striking to see how much control those who choose to mediate retain when making decisions about their lives compared to handing decisions over to a judge, sheriff or arbitrator.
I can therefore understand why there is such a push to encourage mediation when it comes to the breakdown of family relationships, particularly when children are caught in the middle.
This makes sense in that mediation can help individuals find common ground and increase at least an appreciation (if not an understanding) of different perspectives. Mediating through family conflicts enables individuals to communicate with one another and explore different and creative options to resolve disputes, much of which can be lost in an adversarial process.
The sensitive nature of family disputes can often therefore be suited to mediation, rather than more formal means of dispute resolution with traditional emphasis on positional bargaining. A skilled mediator in family proceedings will assist individuals to effectively strain out animosity and allow both parties to paint their own picture of what encapsulates both their current and future goals.
The Scottish Government is currently tasked with establishing a pilot scheme for requiring mandatory meetings on alternatives to court. Progress has been hampered by the global pandemic, but I am looking forward to seeing how the pilot develops, taking into consideration some of the big questions that arise, including when mediation may not be appropriate. There does need to be a balance between encouraging the use of mediation while at the same time not forcing it so that it becomes ineffective or damaging.
The move towards encouraging the use, or at the very least, the profile of mediation is a positive one and we all have our part to play in doing so. As I start out in my legal career, I am really looking forward to learning more about how best to deliver clients’ objectives and seeing how mediation has a big part to play.