Separation, divorce or dissolution of a civil partnership can be hugely stressful. If court intervention is required, this can increase the acrimony between those involved. There are, however, ways to make the process more amicable. This can be particularly important when there are children involved. For those hoping to remain civil, the answer may be to mediate.
What is mediation?
Mediation allows separating couples to negotiate settlement terms relating to both their children and the financial matters arising from their separation, without the need to go to court. Meetings take place in the presence of a trained mediator and can be in person or online. The latter may be particularly useful for those cases where either or both of the parties are working offshore or overseas.
The role of the mediator is not to impose a solution on the parties, but instead to assist them to generate different options for how the issues arising from their separation could be resolved. The process is therefore entirely transparent, with the mediator maintaining a neutral role. The couple is still entitled to instruct lawyers of their own and to obtain advice from them between mediation sessions.
There is no limit to how many sessions a couple may wish or require in order to resolve the issues in dispute. Since the couple is required to speak directly to one another during the mediation, it is often the case that communication between them is improved as a result of going through this process. This can prove invaluable in cases where the couple have children as they will usually have little option but to communicate with one another in the years that follow.
Who is involved in mediation?
Those clients choosing to mediate can expect to be given an opportunity to discuss matters with their ex spouse or partner in a civil environment without fear of abuse or condescension. The mediator will ensure that all parties are given a fair opportunity to speak and and make all decisions together. All mediators are legally qualified and therefore well versed in the law relating to separation and divorce in Scotland.
Where the matters in dispute involve the arrangements for children, the couple can also engage in child inclusive mediation. This process allows their children to be directly involved and may be particularly effective where older children wish to have a say in decision making which affects them.
What are the benefits of mediation?
One of the main benefits of mediation is that clients usually feel that they have been listened to and therefore manage to retain some form of reasonable relationship with another. The polarisation which may set in during a litigated case simply does not occur, as clients continually speak to each other face to face during the process. Meetings can be intense and are often emotional. For most clients who choose mediation, being in a position to make decisions that will shape their own future and the lives of their children makes any short-term discomfort worthwhile.
What happens if mediation fails?
Crucially, mediation is a voluntary process. If either of the couple or indeed the mediator themselves form the view that they do not wish to continue with the mediation, the process will stop. The couple will then toned to speak further to their respective lawyers with a view to ascertaining the next steps. The discussions which take place at mediation are entirely confidential and cannot be used by either party in future negotiations, nor in the context of a court action. The exception to this is any valuations which were disclosed during the process which can be used outwith the mediation process.
What happens if agreement is reached?
If the couple reach agreement on all or even some of the matters in dispute, the mediator will draw up a mediation summary which sets out what was agreed. The couple will then take that summary to their legal representative who will use the information contained in the summary to create a legally binding agreement between them for their signature. If changing circumstances in the future mean that there requires to be an adjustment to what was agreed (for example, if the arrangements for the children require to be updated), the couple can return to mediation to discuss what the new arrangements might be with a view to updating the agreement.
For more information, please do not hesitate to get in touch with one of our family law experts.
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Legal Director