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If a client comes in with a family law issue, why should we be thinking about mediation? First, because the Law Society of Scotland tells us to! Here are some of the rules and guidelines in place:
You must communicate effectively with your clients and others. This includes providing clients with any relevant information which you have and which is necessary to allow informed decisions to be made by clients.
Solicitors should have a sufficient understanding of commonly available alternative dispute resolution options to allow proper consideration and communication of options to a client in considering the client’s interests and objectives. A solicitor providing advice on dispute resolution procedures should be able to discuss and explain available options, including the advantages and disadvantages of each, to a client in such a way as to enable the client to make an informed decision as to the course of action and procedure he or she should pursue to best meet their needs and objectives, and to instruct the solicitor accordingly. A solicitor providing advice on dispute resolution procedures is also expected to be able to identify where alternative methods of dispute resolution may not be in the best interests of the client. For example, this may be a particular consideration for mediation or arbitration in the context of family disputes or other situations where one party may be at risk of violence or intimidation by the other.
Guidance related to Rule C3: Peer Review Criteria Guidance
This guidance is issued by the Council of the Law Society of Scotland in terms of Rule C3, in order to set out the standards expected of solicitors and practice units in relation to the carrying out of civil legal assistance work. In providing civil legal assistance, solicitors are required to comply with these guidelines. One of the criteria to be applied by a peer reviewer in civil legal assistance cases, is whether the solicitor gave appropriate advice to the client, where relevant, on alternative options, such as litigation and mediation.
address the extent to which there have been negotiations to resolve the dispute, or attempts to limit the scope of the dispute between the parties, and provide detailed information to show why these negotiations have failed, including providing copies of any relevant correspondence which may disclose attempts made to resolve matters. The Board is unlikely to consider it reasonable to grant any application for legal aid from a party who has not engaged in genuine attempts to resolve the issue without litigation and who did not enter into such negotiations with a realistic view of what the possible terms of settlement of the dispute could be. The Board will take into account the tone of any correspondence entered into in considering whether reasonable attempts have been made to reach a settlement. It will not consider overly robust or combative correspondence to be supportive of reasonable attempts being made to settle matters without litigation and; address whether mediation has been considered or attempted. If it has not been considered address the reasons for this. If it has been attempted details should be given of the outcome and why litigation is considered necessary.
