Relationship breakdowns are stressful – that is not news. This can be for a variety of reasons and every situation is different. Where relationships end, there will commonly be disputes about the division of the finances and about child care arrangements. In Scotland, it is typical for separating couples to try and negotiate an agreement (known as a 'Separation Agreement' or 'Minute of Agreement') which regulates those issues, through the instruction of solicitors.
The focus on reaching agreement – and avoiding court proceedings – is a positive thing: litigation following on from relationship breakdowns is never a pleasant (or inexpensive) option. Litigation can often be an extremely damaging option to families, particularly where children are involved and it is essential for the wellbeing of all concerned that parents are in a position to effectively co-parent after a separation.
Whilst the negative implications of litigation in a family law setting are well known, what is less well documented is the impact of the traditional negotiation process on separated couples. The process of negotiation towards a Minute of Agreement will often progress by way of correspondence between solicitors – emails, letters etc. Often, this process can be successful and an agreement will ultimately be reached. However, there is scope for obstacles to arise where parties rely on solicitors to communicate with each other, particularly where there is already an existing fragile relationship or where tensions continue to run high, sometimes as a result of anxiety or anger, post separation. Where difficulties arise in this context, the negotiation process can be negatively impacted with the result that delay can ensue and cost can be incurred.
Therefore, sadly, in this territory, even where there is a commitment to try and reach agreement, there is scope for parties to become even more polarised than they were at the beginning of the negotiation process.
So, what is the answer?
There is often no easy answer. What is important is that those going through a separation are aware of their options to help them reach agreement. One such option, often overlooked in family breakdowns, is mediation. Mediation can be an incredibly effective tool in helping parties reach agreement without the same 'risk factors' posed by litigation and also solicitor correspondence led negotiation e.g increased polarisation between parties and uncertainty as to cost / outcome / timescales.
What is mediation and how does it work?
Mediation is a process by which parties who are in dispute try to reach an agreement and / or reach an improved level of understanding of the other party's views in respect of issues or problems, with the help of a trained, impartial, mediator. In a family law setting, this involves the parties working with each other and the mediator, during a series of meetings. The process is entirely voluntary. It is also confidential.
Typically, 'family mediation' (i.e mediation in the context of separation and divorce), will focus on resolving financial and property disputes as well as issues in relation to children. However, one of the key principles of mediation is flexibility – the process can focus on whatever issues or concerns that are important to those involved.
Referrals are often made to a mediator via parties' solicitors but they can also be made directly by a separated couple. Once engaged, the mediator will send both parties' terms and conditions and provide some information about the process. An individual or 'intake' meeting will then be arranged between the mediator and each party separately. During these initial meetings, the mediator will explain the process and ingather some information from each party. After each of the intake sessions, if the mediator considers that the scenario is suitable for mediation, a joint session would be arranged at which the mediator and both parties would attend.
Joint sessions can be tailored to the needs and wishes of those involved. Usually they will last around 90 minutes or so. At the initial joint session, typically both parties will discuss with the mediator the issues which they would like to be addressed. It will often be helpful to identify concerns on both sides and to create an agenda of issues to be considered. Usually, further mediation sessions will be arranged thereafter to address these issues, often with information gathering (e.g information required to help with financial aspects) taking place in between sessions.
Usually at the conclusion of the mediation process, the mediator would be asked to prepare a summary of what has been talked about, identifying the issues which have been considered and if, appropriate, where a level of understanding has been reached between parties. These summaries, if parties wish, can be sent to their solicitors and can be very helpful in reaching overall agreement about finances / arrangements for children, which could, if the parties wish, form the basis of a Minute of Agreement.
Benefits of Mediation
The significant benefit to using mediation is that it allows for constructive dialogue. It provides a 'safe space' in a neutral setting for parties to directly engage about the issues which matter to them. Quite often, there can be a considerable amount of cross-over between the parties in terms of what matters to them, particularly around children. This can easily be lost or forgotten about using more traditional (and, arguably, confrontational) methods of dispute resolution.
It can be very difficult for separated couples to find a way to engage with each other particularly where they are newly separated. Mediation provides a framework to help identify common ground and find a way to assist couples communicate following a separation - this can be crucially important in maintaining a workable co-parenting relationship.
There are also benefits in the sense of dealing with unknowns. Where a relationship breaks down and individuals are faced with a dispute, there will often be uncertainty in the sense of cost, timescales and outcome. This can make the process more anxious than it needs to be. In a family mediation setting, from a cost perspective, parties are able to share the hourly rate of the mediator. They both also have a say in the timing of meetings and they maintain an element of control over how discussions progress.
Family Mediation at Harper Macleod
The family team at Harper MacLeod have several Law Society accredited family mediators, who are also members of CALM Scotland. As well as trained mediators, we are also experienced family law lawyers who can therefore inform the mediation process with the legal framework and rules when we are assisting mediating couples find a way forward.
The HM Family team can offer fixed fee mediation packages, which can be divided between parties, and which can be tailored to the needs and concerns of the families involved.
We would be happy to discuss any referral for mediation from solicitors or indeed, directly from individuals who consider that mediation would be helpful in their circumstances.