Family mediation is evolving to recognise children’s voices - Karen Wylie & Lucia Clark

Last week was Family Mediation Week – and although family mediation has been around for a number of years, there are still changes and developments with the use of mediation, both in Scotland and elsewhere.

Mediation is a confidential process which involves the participants meeting with a mediator, whether in person or online, to identify issues to be resolved and to find mutually acceptable solutions. The mediator is a specially trained, impartial, independent person who facilitates the discussion. Mediation can help individuals resolve disputes about parenting, care arrangements for children, and financial issues.

While mediation has some way to go to become a mainstream part of family justice, it is becoming far more common for couples to consider mediation as an option – and that is a positive development.

For many, mediation is an excellent tool to resolve disputes. It is often less stressful than resolving matters in court, it is cost-effective and it can assist participants to find solutions that would not be open to them if decided by a court.

The process allows the parties to gain an understanding of each other’s views and needs, and can assist them to find a resolution which is acceptable to both. It can be powerful for a person to feel that their concerns or their point of view has been heard, and in certain cases this can enable parties to move on. It allows parents, in particular, to iron out the real-life details and ‘minutiae’' that matter to them and their children in a supported, calm, discussion. Having said that, mediation is not suitable for every case.

In family cases, one important factor is how best to take account of children’s views. “Child inclusive mediation” is a concept which has been around in other countries for many years, but is relatively new to Scotland, following CALM Scotland introducing child inclusive mediation training for its members last year.

Most family mediations currently involve the mediator meeting only with the parents. In “child inclusive mediation” the young person is also given the opportunity to meet separately with the mediator. This is voluntary for the child (as well as the parents), and it does not mean the child becomes the “decision-maker”. But including the young person in this way may allow a good way forward for some families.

Mediation in family cases is currently voluntary in Scotland, although the court can refer a case to mediation if thought appropriate. However, last year the UK Government announced plans to make mediation mandatory in all suitable low-level family court cases in England and Wales, excluding those which involve domestic abuse. It is quite possible that Scotland will follow this in future – although there are concerns, given that the voluntary nature of mediation is widely considered to be a fundamental principle.

It is encouraging to see family mediation continue to evolve and develop, and future years are likely to continue to see an increase in this way of dealing with family disputes.

Karen Wylie is a Senior Associate in Morton Fraser MacRoberts Family Law team. This article was co-authored by Lucia Clark, a Partner in the same team. Both Karen and Lucia are mediators.