Family: Mediation – will Scotland catch up?

Family Mediation week, which is promoted each January by the Family Mediation Council in England & Wales (“E&W”), prompted me to consider how family mediation in Scotland compares with across the border. The process of mediation in family cases is broadly similar; however there are some differences.

Differences

A significant difference from Scotland is that in E&W mediation must be considered before a court action is raised. Section 10 of the Children and Families Act 2014 requires attendance at a mediation information assessment meeting (“MIAM”) for any applicant in relevant family proceedings, and attendance is encouraged for all respondents. At the MIAM the mediator will provide information about the process of mediation and other forms of family dispute resolution. The Family Proceedings Rules, rule 3.8(1)-(2) provide for exceptions to the requirement to attend, the main grounds being domestic violence; child protection; bankruptcy; the unavailability of an authorised mediator within a specific geographical area or timescale; and where a MIAM has already been attended in the last four months.

Scotland differs, in that parties can currently apply straight to court without any need to evidence that mediation has been considered. This may change, however, as s 24 of the Children (Scotland) Act 2020 requires the Scottish ministers to arrange a pilot scheme under which a court may only make an order under the Children (Scotland) Act 1995, s 11 where the parties have attended a mandatory alternative dispute resolution meeting at which all the options available to resolve the dispute are explained. While there are questions about the proposed pilot and how it will operate in practice (see Elaine Sutherland, “Avoid lawsuits beyond all things”, Journal, July 2021, 18), it is potentially a huge step forward in ensuring that parties have been able to consider the best way to resolve the issues in dispute. Having heard about the options, the parties are free to litigate if they wish.

Like E&W, there will be exceptions to the need to attend a mandatory alternative dispute resolution meeting. Section 24 of the 2020 Act provides that the pilot scheme must not apply to proceedings in which there is a proven or alleged history of abuse between some or all of the parties. Also, on cause shown the court may decide that it would not be appropriate to require the parties to attend such a meeting.

The cost of family mediation

In Scotland, mediation is either paid for privately by the parties or covered by legal aid where parties are eligible and they can find a mediator who is prepared to offer their services at legal aid rates. Families can also access family mediation with Relationships Scotland in relation to child matters at no or relatively low cost, albeit at times there may be a waiting list for a mediator. For the pilot discussed it is expected that ministers will make funding available via legal aid or a separate scheme.

In E&W legal aid is available for MIAM attendance and for mediation for those who are eligible, again where they can find a mediator offering legal aid. Legal aid will cover the costs for both parties to attend the MIAM if one party is eligible.

In March 2021 the Ministry of Justice launched a time limited mediation voucher scheme designed to assist families with the cost of mediation. The scheme provides up to £500 per case towards the cost. The voucher is available to parties regarding a dispute or application regarding a child, or a dispute or application regarding finances and children. It is not means tested. Initial statistics show some encouraging results: of the first 2,800 completed cases, 65% of participants reached either whole or partial agreement away from court, while a further 3% only attended court to formalise their agreement.

In Scotland, we may benefit from a similar scheme. For some parties it would to some extent remove the barrier of cost to using CALM mediators, particularly for parties who do not quite qualify for legal aid and have limited resources to spare; for others it may be the incentive they require to try what is to them an untested, unknown process.

The pilot envisaged by the 2020 Act is a welcome proposal, and many are keen to see it succeed. It would be a significant change to the awareness of mediation, and other forms of appropriate dispute resolution, in family cases if it were eventually rolled out across Scotland, with adequate funding to support parties’ participation. However, it is not clear when the pilot will begin. In Scotland it does feel like we are playing catch up to some extent with our neighbouring jurisdiction in family mediation. We await progress.