Does mediation offer couples a better way to separate?

Jenny Smith | 09 Feb 2021

INSIGHTS

There has been a lot in the press recently about the impact of the pandemic and lockdown on families. Couples are struggling, trying to juggle work commitments with looking after children and home schooling, against a background of economic uncertainty and the virus itself. Sadly, not all relationships can survive this onslaught. For some, the last year has been the tipping point for relationships that were already struggling. Separation can become inevitable.

There is also always a lot in the press about how expensive it is to separate and divorce. Celebrity divorces often seem to involve high acrimony and lengthy court battles.

Sometimes, court action is necessary. For example, where there has been abuse and there is a need to ask the court for protective orders urgently to safeguard someone. Or, if there are concerns that assets are being hidden or disposed of. Court can also become necessary where one or other party simply refuses to negotiate. In these sorts of situations, court is a means of compelling progress.

The benefits of mediation and how the process works

But what of the situation where a couple have decided to separate, want to be able to talk about arrangements for their children and financial matters but need some help to do that? Whilst only the court can grant the actual divorce, it does not have to be used to sort out those kinds of issues.

Here at Harper Macleod our family team is able to offer different methods of dispute resolution.

One of those is Mediation. Members of our team are accredited by the Law Society of Scotland as family mediators. We are members of CALM (www.calmscotland.co.uk), the solicitor accredited mediation organisation in Scotland. Just now, we can still continue to offer mediation, using Zoom.

Mediation offers a safe and neutral forum for couples to discuss issues. The process starts with the mediator having an intake session with each of the parties. The purpose of the intake session is to check that mediation is an appropriate process in the circumstances. It would not, for example, be appropriate where it is clear there has been abuse or a high level of mistrust and suspicion. It will not work where there is a power imbalance between the couple. But in many other cases, even where there is a high level of acrimony, it can be a really good way forward.

After the intake sessions, we then have joint mediation sessions. It is not usually possible to sort everything out just in one session. Usually we would have between three and five sessions but there is no minimum or maximum. It is about working through whatever issues need to be addressed in a structured and respectful way. Sometimes, of course, it becomes apparent that the mediation process is breaking down. Our mediators are skilled in identifying where that is happening, and in bringing the process to an end so that no further cost is incurred.

A shared process where you remain in control of the outcome

Mediation is not necessarily an easy process. Parties have to work hard and talk about things which can be upsetting and difficult to hear. The mediator is not there to tell parties what to do, but instead to facilitate discussion. There are ground rules. Parties are expected to be willing to listen to the other person and consider their point of view, and to commit to approaching discussions in good faith and in a spirit of honesty and co-operation. It is therefore very much a shared process, not one where one person tries to dictate to the other or is persistently critical of them.

That is not to say that there will not be difficult conversations, particularly early on in the process. Sometimes, it can be important to let parties express their hurt and frustration. If we do not do that it can become the white elephant in the room and a bar to progress. However, having the mediator there to step in where necessary means that discussions are kept on track and with the overall goal of trying to sort out differences rather than focussing on them. It is also much harder to be unpleasant where a neutral third party is present.

It is even possible to use mediation where there is an ongoing court action, for example in relation to arrangements for children of the relationship. Provided both parties are committed to trying to make the mediation process work, it can still produce a successful outcome.

A key benefit of the mediation process is that parties feel much more in control. Any agreement reached is because parties have reached it, not because a third party decision maker such as a Sheriff or a Judge has imposed it on them. It also removes the need for letters between lawyers which however well-meant and carefully written can often cause distress and angst when received by the other person.

Impartiality

Our mediators will at all times remain impartial. We are not there to judge parties nor offer legal advice. Usually parties will retain their own family lawyer, who will be able to give family law advice. The mediator is, however, able to give legal information where necessary, such as for example to give general information about how a court might approach matters in relation to decisions about children.

Often we are asked to mediate in relation to arrangements for children, such as regulating contact arrangements. Our mediators encourage parties to focus on the needs of the children as well as parties’ own needs and to look at the situation from the children’s point of view.

If parties manage to reach agreement at mediation then the mediator will not draw up a written contract. However, we will provide mediation summaries if requested to do so by both parties. The mediation summary (sometimes these can be interim summaries) sets out the terms of any proposed arrangements discussed at mediation. It can then be used as a basis for a legally binding settlement (which would be prepared by the family lawyers).