A better way to tackle contentious family cases

In Scotland, when couples separate, their first port of call is often a solicitor. Picture: Phil Wilkinson

The courts are full of contentious family law cases that seem to take forever to resolve. These cases often involve the welfare of children but also relate to how couples divide their finances when they separate. While everyone accepts that there are a minority of difficult cases that do require a third party decision, for the rest of the cases there must be an alternative way of processing these cases and that better way is mediation.

CALM Scotland was established in 1993 by a group of experienced family lawyers to provide an alternative process for family dispute resolution. A referral in Scotland to a CALM Mediator (comprehensive accredited lawyer/mediator) allows the parties to meet with a solicitor/mediator trained in family law, to act in a non-directive way as a neutral facilitator to assist couples in coming to their own decisions in connection with the welfare of their children and the financial situation.

Despite this, when the number of people who separate or divorce in Scotland is considered, there is only a very small percentage of cases that are mediated.

In England, public policy has made it compulsory for both sides to attend a meeting prior to any court action being raised in relation to family matters, at which mediation and other forms of dispute resolution will be considered.

The introduction of this system has not been smooth but it has certainly raised the profile of mediation in the community.

In Scotland, when couples separate, their first port of call is often a solicitor. In terms of Law Society guidelines, solicitors have an obligation to outline the various forms of dispute resolution that are available to the couple, including mediation. The problem is this just doesn’t appear to happen.

The majority of cases, perhaps more than 90 per cent, start with a solicitor sending a letter to either the other party or another solicitor and, from then on, there is an exchange of letters, often aggressive in tone, and either an agreement is reached or a court action is raised.

So why do solicitors not refer to mediation?

In the first place, universities have historically not trained solicitors to be anything other than adversarial. Solicitors therefore have a mindset that mitigates against a process like mediation. This situation is changing. Most universities, during the diploma, speak to students about mediation. Unfortunately, it seems that once these students start practice they are discouraged from considering other forms of dispute resolution and are ushered down the combative route.

In the second place, there is the question of fees. The truth of the situation is that if a solicitor is meeting with a new client and discusses matters with the client and takes the view that mediation is an appropriate course of action then, in effect, they will be referring the case away from themselves. Although they will retain an element of involvement, (they have to draw up the Separation Agreement at the end of the case) they in effect “lose” the case and the fees that go with it.

So we have a situation where there is a process that can help families but “gatekeepers” are reluctant to refer. A practical solution is required.

At the moment, solicitor mediation in Scotland is unrepresented. Clients attend mediation without their own solicitor. Many clients feel that this is a disadvantage. They have told their solicitor their story, formed a relationship and yet, when it comes down to the nitty-gritty, their solicitor is not with them.

Represented mediation is commonplace in commercial mediation. The actual process is a little different but if represented mediation was to be introduced in family law cases, then the client would have the benefit of having their solicitor with them but would also be able to take advantage of a process which is less destructive than litigation.

Yes, the process would be more expensive than unrepresented mediation but it would be less expensive than litigation and would allow clients to maintain that relationship with their own solicitor, which is practically so important.

• Professor Alan Susskind is a partner in Harper Macleod’s family law team www.harpermacleod.co.uk