Time to push for family ADR

In her article “Avoid Lawsuits Beyond All Things” (Journal, July 2021, 18), Professor Elaine Sutherland raises various questions about the pilot scheme for mandatory information meetings about alternative dispute resolution (ADR) created by s 24 of the Children (Scotland) Act 2020.

She argues that s 24 as it stands will mean that if one parent fails to attend this mandatory meeting, the court will be prevented from making a s 11 order about contact or residence. Although a failure or refusal may delay matters, it is surely going to be possible for the other parent to request a s 11 order and ask the court to drop the meeting requirement on cause shown?

This matter will no doubt be resolved in the forthcoming pilot scheme regulations, taking Scotland one baby step forward towards encouraging more people to mediate.

Route away from court

At Shared Parenting Scotland we always suggest that parents avoid rushing to court, but we usually hear that family mediation has been flatly refused by the other parent. As noted below, mandatory mediation has been effective elsewhere and we feel it should not be ruled out in this country.

In Scotland the court route still predominates, with around 3,500 cases raised every year to resolve disputes between parents, compared with about 2,500 family mediations and a much smaller number using other methods (solicitor mediation, collaborative law, arbitration etc).

Surely it is preferable for more parents to be guided into less confrontational, cheaper and faster routes towards settling these matters.

In our 2019 report The Way Forward for Family Law in Scotland, we suggested that the new Scottish legislation could provide the opportunity for a paradigm shift in what parents and children can expect from the law and from each other.

We remain optimistic that the changes in the 2020 Act, alongside the Family Justice Modernisation Strategy and current moves to cope with pressures on court business caused by the pandemic, will help Scotland shift towards ADR.

From alternative to mainstream to compulsory

Perhaps we should stop labelling mediation as an “alternative” dispute resolution method, given the advantages it offers over litigation. One step towards that might be to introduce a requirement to actually engage in mediation.

Australia and New Zealand have a mandatory requirement to attempt mediation before commencing court proceedings, with exceptions such as where there has been domestic abuse.

Nordic countries encourage parents to solve their disputes out of court, though only Norway has mandatory mediation for all separating couples. Denmark has a mandatory pre-trial counselling or mediation session. In Finland and Sweden mediation is offered on a voluntary basis outside court processes.

Mandatory mediation before court was surprisingly successful in a pilot carried out in the Hampden Family Court in Massachusetts between 2014 and 2017. From the 154 cases in the pilot, 97 resulted in whole or partial settlement.

Court staff identified appropriate cases, and the two-hour mediation sessions took place in a private conference room in the court building. When agreement was reached, the court checked and signed it off. The mediation was free and the majority of cases involved young, never-married parents with parenting issues and problems in communicating.

Each mediation session involved a lead mediator accompanied by two law students who had completed a semester-long mediation course. It therefore provided valuable experience for these students. None of the parents objected to having three people in the room, and the students’ presence sometimes helped to calm the mediation. No participants complained about being mandated to attend; all were told that they had to attempt mediation, settlement was voluntary and they were in control of the outcome.

Another interesting pilot started in Alaska in 2009 to relieve the pressure on family courts. Self-represented parents were required to attend an Early Resolution Program (ERP) hearing before a settlement judge along with court mediators. By 2014, 634 of the 793 cases given an ERP hearing had settled fully (80%). A subsequent evaluation showed that ERP cases were three to four times shorter than a control group, and six to seven times less costly than typical divorce and custody cases.

Both of these pilots exempted domestic violence cases from mandatory mediation. A very recent study in Washington DC comparing traditional litigation with shuttle and videoconference mediation found that “in cases with parents reporting concerning levels of intimate partner violence, when both parents are independently willing to mediate, mediation designed with strong safety protocols and carried out in a protected environment (shuttle or videoconference) may be an appropriate alternative to court”.

Time to try out new ideas

While one cannot assume that the mediation experiments described above will work as well in Scotland, the success with various levels of compulsion and a range of different approaches to dispute resolution should encourage us to try some new ideas.

The forthcoming Scottish pilot of mandatory information meetings for alternative dispute resolution is one small move towards keeping family disputes out of court – let’s hope it is just the first step towards this worthy goal.