24 Dec 2014
Leah Bowman, Senior Solicitor, looks at the role of mediation in Family Law Disputes.
When a couple separate, the thought of having intimate details of their finances and their children’s lives being discussed in court can often be an unappealing concept. In addition, if a court action is raised, it can be disconcerting to the parties to know that an element of control will be lost, whether that relates to the future care arrangements for children, or the division of the matrimonial property, or both, as the judge will make the ultimate decision. Adding to this is the fact that it can be costly to raise a court action, particularly given that the availability of legal aid is diminishing. Therefore, many people are now considering alternative methods of resolving their disputes. There are various options available when exploring which method of dispute resolution is best suited to the parties involved, including mediation, collaboration and arbitration.
The remainder of this article shall focus on mediation. However, at Aberdein Considine we also have three trained collaborative lawyers and the ability to provide advice in relation to arbitration.
Mediation is one of a range of Dispute Resolution options (historically known as “Alternative Dispute Resolution”). It is a way of resolving disputes without recourse to adversarial court based processes. Mediation takes place between the parties to a dispute in the presence of a trainer mediator. The mediator is usually a single individual, but there are models of co-mediation, where mediators work together to assist the parties to a dispute and reach a resolution. The mediator(s) are neutral and do not take sides during the course of mediation. The mediator’s role is not to give legal advice to either party, but rather to facilitate negotiation. It is useful, and indeed often recommended, that both parties retain their own solicitor to provide them with legal advice outside of the mediation sessions. The parties can take any issue, or a combination of issues, to mediation. This can include the method of divorce, the management of finances in the short-term, the division of assets in the longer term or issues surrounding the future care arrangements for children. Mediation is beneficial for all parties, including, but not restricted to, those separating, divorcing and former cohabitants.
In England and Wales, legislation now exists that strongly encourages the parties to at least consider alternative ways of resolving their dispute prior to raising a court action. On the 22nd April 2014, section 10 of the Children and Families Act 2014 came into force. Since the coming into force of the Act, any applicant in a child related or financial dispute is required to attend at a Mediation Information and Assessment Meeting (a “MIAM”), prior to initiating proceedings, unless they are exempt from doing so. Respondents are also encouraged to participate in at least a MIAM. Changes have also been made to the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013, which now exempts non-financially eligible parties from the financial means test in respect of the first mediation session where the other party is financially eligible for legal aid and the first mediation session, after the MIAM takes place on or after 3rd November 2014. If, after the above has taken place, the action still proceeds to court, then the court has a general duty, enshrined in rule 3.3(1) of the Family Procedure Rules 2010, to consider non-court based dispute resolution at every stage of the proceedings. However, it should be noted that although mediation may be robustly encouraged, there is no actual compulsion for parties to mediate in family proceedings.
In Scotland, there is no legislation that makes it a requirement to attend at mediation or even at a MIAM. However, experience in the Scottish Courts would certainly suggest that the Sheriffs (judges) encourage mediation to take place if the case is suitable, and the parties should be prepared to provide an answer as to why a court action is the best method of resolving their dispute.
Mediation is not a route that removes the need for full disclosure by the parties, and there is an obligation on both parties to make full and frank disclosure of their assets, liabilities and income. The mediator will guide the parties through the disclosure process. Together, the parties and the mediator will then move on to considering options in order to resolve the dispute. As already mentioned, neither party to a dispute can be compelled to attend at mediation. However, research suggests that when parties feel that they have been involved in the decision making process, they tend to be more satisfied with the outcome, as opposed to having something imposed on them by a court, which neither party may be particularly happy with.
At Aberdein Considine, we can provide advice on all aspects of family law, including which method of dispute resolution is most suited to each client’s particular circumstances. Ruth Aberdein is accredited by the Law Society of Scotland as a Family Law Mediator and a member of CALM Scotland. Ruth, along with Leah Bowman and Isabelle Douglas are also trained collaborative lawyers. Please contact Ruth Aberdein on 01224 337471 of email email@example.com for further information.@AC_Leah