The ‘season of goodwill’ is not so happy for split families, but there are ways to settle disputes, says Rhona Adams
Every year around this time, I experience the same combination of déjà vu and horrified disbelief at the appearance of mince pies, tinsel and selection boxes on the supermarket shelves. It’s early October, for goodness’ sake: we haven’t even had Halloween yet!
On a more serious note, it’s a time of year often emotionally charged for separated couples as they contemplate the prospect of not spending Christmas together as a nuclear family, sometimes for the first time in living memory. It’s difficult for children in that situation too. They are often acutely aware of their parents’ sensitivities and anxious not to hurt the feelings of either of them. One of the annual tasks for most family lawyers will be to grapple with various disputes on behalf of clients about arrangements for children over this season.
Imagine, then, the scene in almost any sheriff court the length and breadth of Scotland in December. Inevitably, the sheriff will have a series of last-minute disputes to deal with about arrangements for children over the Christmas and New Year period, in addition to all the other usual business. The time available for resolving these is short. The sheriff will often not be familiar with the parties or their wider situation. These issues don’t involve much law: the Children (Scotland) Act 1995 requires the court to have regard to the ‘best interests’ of a child in making any such decision, but that is really the extent of the guidance. Making a decision as to which competing arrangement to favour often requires the Wisdom of Solomon. It’s not surprising that sometimes, sheriffs will not find themselves imbued with Christmas spirit when having to deal with these cases!
There’s also a timing issue at play: courts have finite resources and a fixed number of days on which applications can be heard. If the party seeking the remedy leaves it too late, then they may find that there are no court days available on which the matter can be aired. In my capacity as solicitor advising on and appearing in such disputes, I have often felt that there must be a better way of resolving them.
The good news is that there is another resource available to people faced with these (and indeed, many other) issues, namely family mediation. There are numerous organisations and individuals in Scotland who offer family mediation services. One of those organisations is CALM. CALM Scotland is a group of experienced family lawyers who are keen to provide an alternative process for family dispute resolution and have undergone training to become accredited by the Law Society of Scotland as family mediators. There are CALM members across Scotland who are able to deal with a wide range of issues, from helping people to reach financial settlement following separation, to putting in place day-to-day arrangements for children and specific issues, such as the choice of school.
One of the key principles of mediation is its confidentiality, enabling people to explore potential solutions in a safe space. CALM mediators have the benefit of many years’ experience themselves as practising family lawyers and whilst it is not the role of a mediator to provide advice to either party, a family mediator can input a great deal of information in neutral terms about the law and the alternative remedies available. An experienced mediator can help parties to ‘sense-check’ any proposals they may arrive at. Most CALM mediators will be able to set up mediation quickly, which has obvious benefits in relation to an issue such as Christmas arrangements. CALM mediators charge for their services, but resolving matters at mediation is usually a great deal cheaper than litigating. If a client qualifies for legal aid, it may also be possible to obtain legal aid cover for mediation.
Of course, mediation is not for everyone and some disputes will still require to come before a court. Most individuals who have been through court proceedings are likely to say that it is not an experience they would gladly repeat. If mediation is unsuccessful, then all that will have been lost is the time and the cost of the sessions that have taken place. If it works, however, the dividend is potentially huge in cost and time savings, and crucially, in setting up a much better basis for communication going forward. www.calmscotland.co.uk
Rhona Adams is Head of Family Law, Morton Fraser and an Accredited CALM Mediator