VI Family Law 14.08.16
“Mediation is not collaborative law,” she firstly emphasises. “What parties do in mediation is to both submit to the services of a mediator with a view of conciliation of the issues, not reconciliation.
“There is a common misconception by people who are being advised on mediation or asked to participate in the process that its ultimate aim and object would be to reconcile them and that is not what it is there to do.
“It is to help the parties identify a common way in which they can reach a resolution surrounding the care and upbringing of their kids and the financial issues before they get a divorce.
“I keep focusing on care and upbringing of children and financial issues because in Scotland, unlike England, the divorce comes last and the decree of the divorce can’t be granted until the arrangements for children under 16 have either been agreed between the parties, or determined by the court, and the same with their financial issues.”
It is not designed to cope with situations previously involving, for example, domestic abuse or a particularly forceful partner. Though “shuttle mediation” may be an option in other situations, with the parties in separate rooms and the mediator travelling between them.
“Quite often what you would look at through a risk management care perspective is to have two mediators. It might be that in circumstances where you have a more dominant person but a case still appropriate for mediation, you can have a male mediator and a female mediator, simply to create balance so that one party doesn’t feel edged out.”
Kelly adds with practical tone: “There is another part to this. If you have sensible solicitors and clients willing to engage properly there’s nothing like good old fashioned negotiation.”
Janice Jones might heartily concur. The partner responsible for family law at Anderson Strathearn in Glasgow is a litigator. Indeed she has dealt with cases that have failed after the collaborative process, in which case the same collaborative lawyers are contractually disallowed to proceed to litigation.
While court situations can be drawn out, the traditional litigation need not automatically involve significant time consumption.
“The whole thing can be done within a matter of days, if you were so minded, but certainly wi t h i n a f ew we e k s,” she contends.
“I had someone in the other day who had already sat down with their financial advisor and worked out a division of every- thing. Both lawyers are being presented with this. Paperwork in that case need not take more than literally days, or a few weeks depending upon availability of solicitors and clients to get things drafted, approved, the other side to revise it. Where a couple have agreed what they want to do and they are both quite clear in their minds it should not take any serious amount of time.