IV Family Law 14.08.16
trying to resolve things. Most family lawyers will see court as a last resort. If you’re not receiving Legal Aid it’s a very costly way to resolve a dispute. You’re also saying to a Sheriff ‘we can’t decide so we’re asking you to make that decision for us’ and that is a risky strategy, in particular when you’re dealing with your own children.
“There are cases which are extremely difficult and they can make collaboration a very challenging process but probably they are cases which, had they been litigated, would have been extraordinarily contentious.
“We put the children at the centre. Courts are very good in terms of contact arrangements – when the contact is going to take place, what time the child is going to be picked up, where the hand over going to be. What they’re not good at is micro managing the very small arrangements which can be the undoing of any arrangement.
“When parties have separated there is that immediate angst of how the mortgage is getting paid this month. You can quickly stabilise the financial position whilst the bigger picture is being looked at. It takes away a lot of pressure.”
Mediation brings distinct benefits, involving only the mediator and the two parties. But its purpose needs to be properly understood. Janie Law, of Family Law Matters (FLM) in Glasgow is a solicitor and CALM family mediator. CALM – or Comprehensive Accredited Lawyer Mediators – is the only organisation in Scotland clients can use to access accredited confidential mediation from mediators who are also practising lawyers.
Law informs: “What we’re finding is even in very high conflict cases there reaches a point where mediation can work if people reach the stage where they understand that some kind of compromise must be made in order to move forward.
“There are a lot of referrals from Court. The case may have been in court for six months or a year and it is becoming more and more contentious. The strands of the arguments are becoming more complex.
“In mediation there is time to talk; there isn’t in court. You can get to the root of the real issues that are stumbling blocks.
“CALM mediators have found that having individual meetings first helps to make it clear the process is about them participating, them expressing their views and them finding the solution – not me imposing it upon them. That first meeting, where there isn’t the pressure of the other person being there, is very important.
“The mediation process itself doesn’t give a final court order or a binding legal agreement. In a text book scenario what would happen would be people would come to speak to me, agreements would be pretty obvious, I would draw up a summary of what they were saying. That’s not a binding contract but I would send that summary of headings, if you like, to their lawyers who would then draw it up into a binding contract.”
Siobhan Kelly, head of family law at BLM in Glasgow, believes mediation is a crucial link in the path to settlement. Child care is a recurring theme in her explanation.