Family law mediation in Scotland: A litigator’s perspective

What is family mediation in Scotland?

Family mediation is a voluntary process in which separating or separated couples meet with an independent, trained and accredited mediator to try to resolve issues themselves. These issues often include arrangements for the care of children and division of finances in addition to other practical matters arising from separation. In Scotland, mediation is encouraged but not mandatory. Parties can raise court proceedings without first attempting mediation. Mediation sessions are confidential and “without prejudice”, meaning discussions cannot be used later in court if matters do not settle. If agreement is reached, then this can be formalised by family lawyers in legally binding minutes of agreement. Mediation can take place even if a court action has already been raised with the court action often being paused to allow for the parties to attend mediation.

How mediation and litigation differ in family law

Mediation and litigation are both types of dispute resolution, however they offer fundamentally different routes to resolving family disputes. The biggest difference is that within mediation, parties have full control over both the process and the outcome, being assisted by the mediator to consider various options. In contrast, litigation involves relinquishing control of the process and outcome to the Sheriff or Judge in court. Further, mediation is private whereas litigation is, primarily, a public forum (albeit certain family law matters are dealt with in private).

The advantages and disadvantages of mediation

Mediation can be less expensive than court proceedings. Further, mediation can be the forum that provides the quickest resolution. Litigation can have the unfortunate result of entrenching already opposed positions. Mediation, in contrast, can have the result of allowing the parties to improve their communication with each other and to better listen to each other’s perspectives. For parents who will need to co-parent long after their legal dispute ends, this can be invaluable. Courts are constrained by legislation and precedent whereas mediation allows for creative, bespoke solutions to be formed, particularly around child arrangements.

Despite the benefits, mediation is not the best forum of dispute resolution in all circumstances of relationship breakdown. Mediation is often not appropriate in situations when allegations of domestic abuse have been made or in situations in which one or both parties are too entrenched in their views or positions. Unlike litigation, mediation cannot compel full financial disclosure, nor can it provide quick, protective remedies to a person who has serious and immediate concerns about the welfare of a child.

Why litigation still matters

As both an experienced litigator and accredited family law mediator, I have experienced both forms of dispute resolution and it is unequivocally the case that litigation is sometimes necessary within the sphere of family law in Scotland. Quite simply, it is sometimes best for all involved that a third party (a Sheriff or Judge) provides a decision in certain situations. Examples of such situations are:

• When there is a risk of a child being relocated by one parent against the wishes of the other parent
• When one or both parties refuse to engage in the disclosure of financial information so as to impede their ability to calculate a fair division of property
• When one or both parties adopt entrenched positions
• When urgent protective orders (interdicts, non-harassment orders and/or powers of arrest) are required.

The Scottish courts continue to handle a significant volume of family actions each year, and despite growing awareness of family law mediation, litigation remains the dominant route for resolving family law disputes. In addition to solicitor mediation, other mediation services exist in Scotland to assist parties in resolving matters arising from relationship breakdown. One such organisation is Relationships Scotland who supported 1,903 clients through family mediation in 2022-23 (Relationships Scotland Annual Statistics Summary 2024-25). Whilst many more people will have utilised mediation throughout this period using other mediation providers (including solicitor mediators) this number is still likely to be very low when compared with the 11,445 family actions raised in the Scottish Courts and Tribunals Service during that year (Civil Justice Statistics in Scotland 2022-23). Despite family actions in the Scottish Courts and Tribunals Service being down by 7% on the previous year, statistics still reflect what I and most other family lawyers experience daily; mediation is often discussed and sometimes attempted; however, litigation remains the most common dispute resolution forum in most family law disputes.

The way forward

Mediation and litigation are tools to be utilised, and the skilled family lawyer will be able to advise clients as to the most appropriate dispute resolution forum in their particular set of circumstances. What is most important is that, irrespective as to whether mediation, litigation or another means of resolution is utilised, the family emerges from it with clarity and confidence as to the way forward. If children are involved, it is vitally important that, despite the breakdown of the relationship between their parents, they feel heard, supported and nurtured by both parents and the wider family both during the process and once the lawyers and legal processes are a distant memory. The key is not choosing mediation instead of litigation but understanding when each approach is appropriate in order to achieve the best outcome for families at a difficult time.

If you require advice on the issues discussed in this article, please get in touch with one of our family lawyers.