On 23 March 2023 the UK Government announced plans to fund mandatory mediation for separating couples in England and Wales. It is proposed that mediation become mandatory in all suitable low-level family court cases, excluding those which include allegations or a history of domestic abuse. The aim is that couples have to try and agree arrangements for their children with the assistance of a mediator, with court action being a last resort.
Compulsory v voluntary mediation
There are a number of different arguments in relation to why mandatory mediation should not be utilised.
One argument is that it is a contradiction in terms. The basic concern is that compulsory attendance at mediation is at odds with the consensual ethos at the heart of any alternative method of dispute resolution. Entry into mediation on a voluntary basis is widely considered to be a fundamental principle of mediation.
Another issue with the concept of mandatory mediation is the potential for inequality in bargaining power between the parties. Such inequalities manifest themselves in various forms. Examples include a lack of ability of one party in handling finances, poor communication skills and the fact of where a child resides when mediation begins. However, it is the issue of domestic violence upon which critics of this form of dispute resolution most readily base their arguments and this may consequently create a barrier to it's attaining mandatory status.
Another issue is that of the potential of violation of the rule of law. The argument here is founded on a notion that to demand that parties engage in mediation first in the process of arranging child residence and contact disputes denies parents a fundamental right namely access to justice. But it is my view that this fear that mandatory mediation violates the rule of law is a myth and therefore should not create an obstacle to its introduction in Scots Law: "The conceptual difficulty with Court imposed mediation [i.e. the human rights argument that mandatory mediation excludes the human right to a hearing] has not acted as a barrier to court–annexed mediation in other jurisdictions, where there is evidence not only that court-annexed mediation can be put in place but that it can change the culture of litigious pursuit." (Ross, Margaret: Mediation in Scotland: An Eluded Opportunity? (in studies of UK Law 2002, United Kingdom Comparative Law Series, volume 21, p196)).
A cultural change
Solicitors are often the first port of call for a person in the midst of a dispute about child residence and contact. They are therefore best placed to advise their clients on the benefits of voluntarily attempting mediation. The parties to mediation should also, ideally, maintain their legal advisor in the background while mediation is ongoing. The training of all family and child law solicitors is of paramount importance – at the very least an understanding is required as to what mediation is and what can be achieved and, at best, they will be trained mediators themselves and can offer experienced examples of the benefits of the process. "If the legal and public culture about divorce and family dispute is to change, lawyers including judges now have an opportunity to lead rather than follow the change." (Fricker, Judge Nigel QC: Family Law is Different [1995] Family Law, p 308).
Before mandatory mediation will be successful in Scotland, a change of mindset is needed among many solicitors and the judiciary. The legal profession must lead the way in creating a more non-litigious culture in family law matters.
There are, in contrast, many arguments in support of the introduction of mandatory mediation in Scots family law. The practical advantages include the following:-
- Costs – one compelling reason for increasing mediation use in family law is that it is claimed by many to be cheaper and more cost effective in terms of legal aid than the conventional legal process in which disputes are handled primarily by lawyers in the courts.
- Time – the importance of freeing up Court time in the UK has never been greater: "delay is the scourge of the family justice system" (per Justice Munby in F v M [2004] WL 960914, para.46). An attempt must be made to divert people from litigation in our Courts.
A suggested model for Scotland
Since 1996, Scottish Courts have held limited powers regarding mediation use. The Sheriff can refer parties to mediation once proceedings have commenced in Court. No legal sanctions are imposed upon the parties who refuse to attend mediation sessions directed by the Court.
Change is on the horizon. Sections 23 and 24 of the Children (Scotland) Act 2020, under the heading 'Alternative dispute resolution' provide for 'Funding for alternative dispute resolution' and a 'Pilot scheme for mandatory alternative dispute resolution meetings'.
- Under section 23, the Scottish Ministers must, in relation to any action raised or about to be raised involving section 11 (1) of the Children (Scotland) Act 1995 (i.e. parental responsibilities and rights) set up a scheme to make assistance available so that individuals can meet the costs of alternative dispute resolution procedures or arrange for assistance to be made available from the Scottish Legal Aid Fund so that individuals can meet those costs.
- Under section 24, the Scottish Ministers must arrange a pilot scheme under which a court, in proceedings to which the scheme applies, may only make an order under section 11 (1) of the 1995 Act where the parties to the proceedings have attended a meeting at which the options available to resolve the dispute giving rise to the proceedings are explained or if the terms of the scheme allow, where the court has decided that it would not be appropriate to require the parties to attend such a meeting.
Where do we go from here?
With Scotland's civil courts under increasing pressure, relief is necessary - mandatory mediation could provide it. Whilst some will always prefer to view mediation as a 'complementary' method of dispute resolution, this is, arguably, not potent enough. The gradually growing acceptance that mediation is the best forum for resolution of family disputes, coupled with the present under-utilisation of the process in Scotland and evidence of the success of mandatory mediation elsewhere, demands that serious consideration be given to the incorporation of mandatory mediation into the Scottish legal process.
Let all of us charged with the sanctity of children's welfare try our best to ensure that, wherever possible, the adults around children (parents, mediators, judges, teachers, grandparents, solicitors) do their best to make good decisions and put the children first. Mediation has the ability to keep those people who are most important to children, their parents, communicating and making decisions about them in a safe, structured and respectful manner.
Mediation will not be the answer for every family, but in many cases there is no harm in trying – for the sake of the children.
Based in Inverness, Sarah Lilley is a Partner with Brodies LLP. Sarah is accredited by the Law Society of Scotland in child law, family law and family law mediation.
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