In February 2011 the Westminster Government announced an intention to introduce compulsory mediation assessment sessions in England and Wales for separating couples contemplating litigation. It needs to be understood that this initiative is almost certainly driven by financial constraints on the nation’s legal aid budget rather than altruistic concerns about the welfare of our citizens! That said, it is worth considering what all the fuss is about in practice.

Mediation has been around in Scottish family law circles for at least the past two decades and remains a valuable and well used medium for facilitating the settling of disputes between separating couples. For that is what it is............ a tool for facilitating negotiations between couples who are having difficulty in agreeing how to settle their differences.

A few points............The mediator is no more than a facilitator who has prime responsibility for managing the process (rather than the content). The mediator is not a decision maker. The mediator is not an advisor. The mediation process does not preclude the need for parties obtaining legal advice. Mediation is not for everyone. So what does mediation offer? First let’s consider the legal process.

It has to be recognised that the vast majority of family law disputes are resolved by discussion, negotiation and agreement with the assistance of lawyers and without going to court. Less than 10% of disputed cases end up in court and of those cases less than 10% are resolved by a proof hearing on evidence. In most cases the parties have a common purpose to find a solution that works for both of them and the majority of family lawyers support that approach having regard to the best interests of their own client. The law is not monochrome and discussions can be difficult, and, on occasion, acrimonious; but for the most part, positive outcomes are achieved and wrapped up in a formal binding contract which allows couples to move on to the next stage of their lives.

Lawyers inevitably function within a legal framework, and when negotiating, always have at the back of their mind what an outcome might be in court, should negotiations fail. Some negotiations do of course fail, usually because of one of the following reasons:

  • All relevant financial information has not been produced
  • Expectations have not been well managed
  • There is a genuinely held disagreement about the applicable law
  • One party is not emotionally ready to finalise matters
  • There is an inability by one or both parties to appreciate the benefit of compromise.

In such cases, negotiations may be suspended for a period until the defects are resolved or, the parties may go to court. Lawyers will usually try to keep a dispute out of court, but sometimes it is the only remaining choice - and that does not necessarily mean that it is a bad choice. The courts are there to resolve disputes which can’t be resolved by other means.

Litigation provides an end to the dispute. The outcome will be determined by a disinterested party (the judge) who must apply the relevant law to the facts brought out by the evidence. Things can go wrong. The evidence may not emerge as expected. The judge may not accept some evidence as being truthful. A witness may not turn up to give evidence. However, litigation does provides a platform for early resolution of interim problems such as child contact, interim financial support, protection orders of one sort or another and, crucially, the ability to obtain an order requiring the production of missing documents and financial information.

Mediation does not formally provide for any of the above. The process is based on a degree of good faith, and, to some extent, trust - ingredients which are often missing in the early stages of separation. A successful mediation depends on the skill of the mediator, the parties sharing a desire to achieve an outcome (and therefore a willingness to compromise), a belief that all relevant information has been tabled and shared, and, a belief in the integrity of the process by all the participants. It is sometimes suggested that mediation provides a win–win situation, and that is probably true, even when the mediation fails to reach an agreed outcome. Where the mediation fails, the parties will nevertheless have been enriched by a better understanding of (i) the arguments of the other, (ii) the strengths and weaknesses of their own arguments and (iii) the problems to be overcome. However, where both parties actively want to go to mediation that is often a good sign and bodes well for a successful outcome.

It is also important for individuals to appreciate that family mediation does not operate within a silo independent of legal input. Parties mediating should still take legal advice as the process unfolds in order to have a proper understanding of their rights (and obligations). Lawyers will also usually be involved in writing up the agreement in formal terms at the end of the mediation process.

So in summary, the processes are quite different and offer alternative approaches to dispute resolution. It can’t reasonably be said that one is better than the other. Both processes are imperfect and neither will have universal appeal.

For many years the courts in Scotland have had the power to remit a case in court to mediation, although there is no mandatory provision to do so as is now proposed in England. If litigating, a court will impose a decision on both parties (which is unlikely to appeal to one of them), but provides a platform for both interim and final remedies. It has the ability to get things sorted where one party is resistant to doing so. The court process can be prolonged, expensive, emotionally draining and can be bruising on family relationships (which matters where children are involved). Mediation may not provide an outcome, but where it does, it is an agreed outcome and therefore, by definition, acceptable to both parties. The process is usually quicker and cheaper than court and tends to be more beneficial in terms of maintaining adequate family relationships.

For many years now, lawyers in Scotland have been providing clients with advice on a range of options for dispute resolution including mediation, and several family lawyers are, themselves, mediators. It is difficult to say whether mandatory mediation assessment consultations will be beneficial, but one has to recognise that many people remain oblivious to the existence of mediation, may have heard of it but have no idea how it works, or may have a completely unfounded prejudice against the process for some reason. In such cases learning what mediation has to offer can only be worthwhile. In the meantime clients should discuss all options with their lawyer and keep an open mind as to what might work best for them.