Divorce mediation solicitors
Mediation is a form of alternative dispute resolution (ADR) that is becoming increasingly popular within family law. Divorce mediation provides parties who are separating with an alternative way of dealing with important matters such as finances (including how matrimonial assets such as the family home should be divided) and issues concerning children of the relationship, such as contact and residence.
The process is entirely voluntary and both parties must agree to mediation as the way they would like to progress. A neutral third party, the mediator, is used to assist separated couples to communicate in an effective manner to try to resolve what can be very emotive and difficult issues following separation.
The more traditional approach of solicitor-led negotiation can be a lengthy and expensive process and if matters remain unresolved, parties may find themselves in the position of facing a court action. Of course, this inevitably means more time and expense and can often be an extremely stressful experience for both parties. Mediation seeks to relieve these issues by empowering separated couples to resolve matters in their own way and have far greater control over the key issues which are of importance to them.
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What is Divorce Mediation?
Overview
Divorce mediation is one of the ways in which separated couples can choose to deal with the various matters that require to be resolved following the breakdown of their relationship. It aims to provide parties with a timeous, cost-effective approach to reach a resolution without the need for more contentious methods such as going to court.
Divorce mediation sessions offer a safe space for separated couples to move forward through effective communication, assisted by a trained family mediator, who is an impartial third party in the process. Many trained family mediators in Scotland are also family solicitors and therefore have the appropriate legal knowledge to deal with matters, in addition to their softer mediation skills.
Other more traditional ways of resolving matters following separation include lawyer negotiation and raising an action in court. Both methods can be particularly time-consuming and can result in significant costs for parties, in addition to the emotional stress involved. Divorce mediation, on the other hand, provides for a much quicker and less expensive way to deal with matters and importantly, can limit the possibility of conflict.
The Role of a Divorce Mediator
Many divorce mediators in Scotland are qualified family solicitors who are also accredited by CALM (Comprehensive Accredited Lawyer Mediators) Scotland. They adopt a neutral and impartial role in the process and provide guidance to parties on reaching their shared goal of conflict resolution.
The divorce mediator assists parties to establish areas of common ground, which in turn helps to identify the matters which require to be resolved. There is a strong focus on constructive communication and allowing parties the opportunity to voice their concerns in a safe and controlled environment. Parties can also decide between them who to appoint as a mediator, again ensuring that they are in control of the process as far as possible.
The Mediation Process Explained
Before the mediation process begins, the mediator will assess parties’ suitability for mediation. Providing mediation sessions is considered to be appropriate in the particular circumstances, the mediator will then arrange initial individual meetings with respective parties to provide general information on the mediation process itself. These meetings will also be used to gather information on what parties consider to be the main issues of conflict, which helps to inform future sessions. Following this, generally the mediator will meet with both parties together in joint meetings, however in cases where this is not the best option for parties, a shuttle format for meetings can be utilised instead.
The Legal Framework of Mediation
Overview
Legally Binding Agreements
Where parties have reached agreement on issues such as finances and childcare by participating in mediation, the terms of such will be confirmed to them in writing by the mediator. This is known as a Mediation Agreement. It is important to note however that Mediation Agreements are not legally binding and cannot therefore be relied upon in court should one or both of the parties fail to adhere to the agreed terms.
To deal with this, once parties have reached agreement at the end of the mediation process, the terms of such agreement are commonly drafted by one party’s solicitor into a formal Minute of Agreement, also known as a Separation Agreement. A Separation Agreement is a legally binding document which can later be relied upon in court if so required.
Legal Aid and Mediation
Mediation can be paid for privately or through Legal aid. In Scotland, Legal Aid is governed by the Scottish Legal Aid Board. The costs for divorce mediation can be covered under advice and assistance or Civil Legal Aid, provided certain conditions are met. Costs for mediation are generally split between parties and Legal Aid for mediation is provided on an individual basis only and would not cover the other party’s respective share of the costs.
For more information on legal aid in Scotland, please visit www.slab.org.uk.
The Benefits of Mediation
Overview
Cost-Effectiveness and Time Savings
Divorce mediation is significantly less time-consuming than traditional lawyer negotiation. Although there is no set number of sessions recommended for mediation, with each case varying in time taken from start to finish, there is no doubt that mediation will be completed far more timeously than other methods of resolution. In particular, there is a huge saving on timescale with mediation compared to raising a divorce action in court.
Similarly, the financial costs for mediation are far less than with negotiation or dealing with matters via the court. Another important point to note is that it is usual practice for mediation legal fees to be split equally between parties, meaning that costs can be kept to a minimum.
Confidentiality and Control
The confidential nature of mediation is regulated by way of the Civil Evidence (Family Mediation) (Scotland) Act 1995. Essentially what this legislation provides is that anything discussed within mediation shall be afforded the protection of confidentiality, unless parties agree to the contrary or there is a legal requirement for the mediator to disclose certain information.
Mediation for Children and Parenting Plans
Divorce mediation may involve matters concerning children of the relationship. The mediation process can also include participation from children themselves, providing them with a voice on the aspects that affect them directly and ensuring that their needs are put at the centre of the process. By involving children in meditation, this helps to ensure that a holistic approach is taken for the family as a whole and can assist greatly with reaching resolution.
Preparing for Mediation
Financial Disclosure in Mediation
In terms of financial disclosure in divorce mediation, this is the same as it would be for more traditional methods of resolution involving lawyers. In order to ensure that the process and indeed the outcomes from such are fair and reasonable, both parties are required to provide full financial disclosure of their assets and liabilities as at the date of separation. This includes all properties that either party may own, other capital assets, investments, shares, pensions and business interests, in addition to liabilities such as loans and credit card debt. Where parties are not in agreement about their respective financial disclosures, this would be raised within the mediation meetings with a view to resolving these matters before proceeding with other issues.
Challenges in Mediation
Overview
When Mediation May Not Be Suitable
Divorce mediation is not suitable for every case and there are certain situations when mediation would not be recommended as a method of resolution. For example, in cases where domestic abuse is or has previously been a factor, an alternative approach would be required. Similarly, if an urgent decision requires to be made on an aspect of the divorce, then mediation would not be appropriate.
Overcoming Impasses in Mediation
It is commonplace in mediation for there to be times throughout the process when progress is halted or even reaches deadlock when parties cannot find a way to reach agreement on a particular issue. Due to extensive training and knowledge and experience gained through previously having dealt with similar difficulties, family mediators are well equipped to handle such issues. There are various strategies that a divorce mediator will employ to overcome such impasses in mediation. Active listening and understanding; exploring alternative solutions; knowing when to take breaks and regroup; and acknowledging parties’ feelings and difficulties are just some of the techniques that are used by divorce mediators to overcome some of the common hurdles that parties face going through the process.
Alternatives to Mediation
Family Arbitration and Collaborative Law
Of course, there are other options for resolution in divorce cases. As with mediation, family arbitration can provide a quick and cost-effective method of reaching agreement. The main difference between mediation and arbitration is that the decision made at the end of the process by the arbitrator is final and legally binding on both parties.
Collaborative family law involves each party appointing a collaboratively trained lawyer to represent them throughout the process. Following individual assessment meetings with parties and their respective lawyers, both parties, together with their legal representatives meet to discuss matters and attempt to reach agreement on how the key issues for parties should be resolved. Again, this method of resolution can be far quicker and more cost effective than traditional methods of negotiation or court action.
After Mediation
Implementing Mediation Agreements
As Mediation Agreements have no legally binding status and cannot therefore be challenged in court, the standard process following mediation is to have the terms of the Mediation Agreement drawn up into a formal Minute of Agreement, also known as a Separation Agreement. By doing this, parties have the peace of mind that should the other breach the terms of the Agreement, then the matter can be raised in court.
Conclusions
Overview
Divorce mediation provides an alternative option for parties who have separated, allowing them to resolve matters such as finances and issues in relation to children of the marriage such as contact and residence. There are many benefits to choosing divorce mediation, including having matters dealt with timeously and at reduced costs in comparison to lawyer-based negotiations and raising an action in court. Divorce mediation also enables parties to stay in control of a number of aspects of the process, including who is appointed as a trained mediator and what format mediation meetings should take.
Harper Macleod and Family Law. Why choose us?
The Family Team at Harper Macleod have a great deal of experience in representing clients in divorce matters. We have a number of family lawyers who are also trained family mediators, accredited through the Law Society of Scotland and CALM Scotland. We are therefore in an excellent position to advise you on all legal aspects arising from your divorce, including some of the less traditional methods of resolution such as mediation.
If you have any questions about divorce mediation or any other family matters, please submit a callback form and one of our team members will contact you shortly.
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