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Mediation is a voluntary process which, with the help of an impartial third party, allows a couple, who have issues or problems, to discuss how those issues can be resolved. The mediator will help the parties focus on effective communication, mutual understanding and information gathering. This allows the parties to identify common ground and to find the best way forward.
This means mediation in the context of divorce or separation. When a straight or LGBTI couple separate, there are so many issues an changes to deal with that it can be hard to know where to start. Although it is good for parties to talk and to try to make plans together, when plans are made for a different, separate future, misunderstandings, fears and conflict may arise and constructive discussion can often be overcome by emotion. A trained family mediator can help keep the discussions on a constructive footing. Sometimes, one party might not have expected the separation and may be very hurt and frightened. It may be extremely difficult to consider sitting in the same room as the other person. One party may feel that h or she can no longer trust the other. Out mediatiors understand these anxieties. The process of mediation is designed to support people who are feeling vulnerable and to address their concerns. It also allows all necessary information to be gathered and for options available to the parties to be considered.
Our CALM mediators are lawyer-mediators. Most people also want to know the legal framework and rules that will apply when they are considering the best way forward. Lawyer-mediators are experienced family lawyers who have also trained as mediators and can provide within the mediation process, therefore, information about the legal rules that apply on separation and divorce. This includes child related matters and financial and property issues. We also have a knowledge and understanding of family behaviour. We are sensitive and alert to power imbalances within a couple’s relationship, and to any behaviour which could affect the openness and fairness of the process for both parties. We are non-judgementaal and do not act as an arbiter or judge. As mediators we will be even handed with both of you and will try to assist you in reaching a mutually acceptable resolution of all matters arising out of your seperation.
Most mediators arrange a seperate first session for each person before the joint mediation sessions begin. This first session allows the mediator to explore whether a joint mediation will be appropriate. General information about the mediation process will be provided. The issues to be addressed can be identified. How these issues will be tackled will be left to the joint sessions. Even if mediation stops after the intake session, it should help clarify some issues and provide information. In most cases, a joint session between the parties would then. be arranged. If the mediator can see that mediation is not the right way forward, then the mediator will confirm this after the individual session.
A lawyer-mediator can give full and impartial information about the legal framework but cannot provide legal advice to either party. The information provided is to allow the parties to decide what arrangement would be appropriate for their circumstances. The parties will be encouraged to take advice from their lawyers on any proposals or suggestions made at mediation. Any proposal agreed at mediation could be confirmed in a formal Agreement which would be prepared and adjusted between the parties and their lawyers. If a party is eligible for Legal Aid, then it will be necessary to go through a lawyer to confirm whether the costs of mediation will be met by the Scottish Legal Aid Board.
Discussions in mediation are confidential and cannot be referred to outwith the mediation unless both parties agree. The only exception to this is in relation to information provided about money or property which is exchanged between the parties and is, therefore, not subject to the same rule of confidentiality.
The main benefit is that it provides a framework for parties to resolve their differences constructively rather than in a confrontational manner. The process gives the parties the power to decide on how their issues are to be resolved, particularly arrangements for children, rather than having decisions made for them by a third party in a Court. The process can be started at any time. It can take place before or after separation and before or after divorce. The earlier that mediation is attempted, the more chance there is that the relationship between the parties can remain amicable after separation. There are huge benefits to the children if their parents are able to resolve matters in a constructive and non-confrontational way.
Anyone with the interests of the family at heart. For example, Social Workers, Doctors, Ministers, Couple Counsellors and in appropriate cases Solicitors, Sheriffs, Citizens Advice Bureaux and so on. Parties can also come to mediation directly.
An hourly rate is charged for individual sessions and for joint mediation sessions. This is shared between the parties in whatever proportion they agree. The rate may vary depending on the mediator. If parties qualify for Legal Aid, their Solicitors should be able to arrange for their share of the costs of mediation to be covered by Legal Aid or Advice & Assistance subject to usual rules of the Scottish Legal Aid Board.
Yes. Anxieties about the mediation process can be explored at the initial stages and at any intake and information session. The process is voluntary and will only have a chance of working if both parties agree to commit to the process. If one party refuses to attend mediation, then the process cannot proceed.
The parties, or their advisors, should make contact with a mediator to arrange a suitable time for an intake session or a first mediation session. If a party qualifies for Legal Aid or Advice & Assistance, then he or she should contact a Solicitor to obtain the Scottish Legal Aid Board’s permission to attend mediation before contacting a CALM mediator to arrange an appointment.
It is difficult to predict how many sessions will be needed for a particular case. It depends on many factors including the number of issues and the complexity of these issues which have to be addressed. If the parties are able to communicate well and in a constructive manner, then issues can be resolved more quickly. It is, however, extremely unlikely that one session would be enough. By the end of the third session, the main issues should have been identified and options for resolution of these issues should have been considered. Further sessions may be required to implement or monitor arrangements agreed.
Each mediation session should last about an hour and a half.
Obviously there are times where mediation may not be appropriate, and the mediator can assess that at the outset and as the process goes on. Most times it can work, sometimes it doesn’t, but at least it gives the parties the opportunity to take a bit more control and responsibility for their own lives. If you have any questions about this, please chat with a local mediator in your Faculty or contact us via the website.
For the rules and guidelines in place about family mediation, click the button below
