Mediation in Child Law Matters – Can you afford not to try?

The breakdown of a relationship is rarely easy. It can bring with it a range of emotions. It can also bring unsettling and unwelcome change. There will often be a feeling of uncertainty around what is at risk and the fear of loss. This will be different for different people but we commonly see clients who are worried about loss of their home, their source of financial security and their identity (as a spouse or parent, for example).

For many people, the transition that comes with a separation is nothing short of traumatic. Making decisions during this time can seem impossible, as can the prospect of reaching an agreement with a former partner.

This is particularly the case where children are involved. Many of the children of separated parents will – like their parents – also be faced with unsettling and unwelcome change. They might not understand the change but they can feel and observe it. In some cases, this can lead to anxiety and distress amongst children. Uncertainty around what separation means for them – about where they will be living, about how often they will see one parent or another, or about how they should be feeling about a parent (if the other parent clearly feels otherwise) – can have the result of making a child feel emotionally less ‘safe’.

What can be done?

There is no magic wand, of course. What will help is children knowing that their parents are working together to make decisions. This message can be very important, as can the time taken to reach important decisions which impact on children. Uncertainty hanging over adults for months and months on end can be excruciating; it is no different for children. That is why mediation can be such an important tool for separating parents.

How does mediation compare to other options to address child related disputes?

We commonly see correspondence going back and forth between solicitors about child matters. This can be hugely damaging – receiving solicitor correspondence setting out when and where it is proposed parents will see their children or voicing criticism of the other parent can leave people feeling voiceless, exposed and more polarised than when they started the process. It can also be very expensive for little return. Litigation, on the more extreme end, takes decision making out of the hands of parents and into the hands of the court. Again, parents will likely be instantly polarised by the raising of court proceedings – by its very nature, the court process means litigants are on opposing ‘sides’ and that they are asking the court to favour their ‘position’ over that of the other parent. Documents are lodged with the court setting out and supporting this ‘position’, relaying incidents which have occurred and setting out the reasons why it is the best interests of the children for their request to the court to be granted, and not that of the other parent. Litigation is expensive and the timing of decision making will also be out of the hands of parents. Thus, the raising of proceedings can often have deeply long-lasting negative implications for future co-parenting relationships.

Mediation – how does it work?

Mediation offers a safe space for separated parents to address issues relating to children. The mediator will be neutral, often a Law Society of Scotland accredited family law mediator. Parents will be offered an initial intake meeting on their own with the mediator at the outset. These can generally be arranged relatively quickly (subject to mediator availability) unlike the wait that many parents face to have matters addressed by the court. The initial intake meeting is a background gathering meeting so the mediator can get more information of what is important to each individual and also so that the mediator can judge whether the case is one which is suitable for mediation. Thereafter, assuming the mediator is content that the case is suitable for mediation, joint sessions with both parents and the mediator can take place. The number of joint sessions will vary from case to case. However, issues can often be resolved within a handful of sessions, which limits expense (particularly where parties are sharing the cost of mediation, which is often the case). The sessions can often be very challenging for parents. However, where there are common goals, which there often are where children are involved, mediation very often has a positive outcome.

Those involved in mediation often come away from the sessions ‘on the same page’, with a sense of having some control over the outcome and with a plan for addressing child related issues. This can make a fundamental difference to a person’s experience of separation and also to their post separation co-parenting journey with their former partner. The difference for children in these situations can be enormous – emotionally and psychologically – such that, in our experience, even if there is doubt that mediation will ‘work’, it will usually be worth trying. The advantages where mediation is successful – saving cost, time, maintaining a sense of control and providing a framework for co-parenting – make it difficult to argue the case otherwise.

Our Karen Gibbons is a partner in the family law team and one of the Harper Macleod’s law society accredited family law mediators. Please make contact on [email protected] if you would like further information on the mediation process or to discuss availability for intake sessions.