Family Justice Modernisation Strategy

Part 7: Alternatives to court Background

7.1 In the consultation on the review of the 1995 Act the Scottish Government sought views on alternatives to court.

7.2 The Scottish Government also sought views on the confidentiality of mediation in international child abduction cases.

Alternatives to court

7.3 Evidence suggests that court procedure can be costly, lengthy and stressful.^[40] In many cases, parties are able to settle contact and residence issues themselves without going to court.

7.4 There are various forms of dispute resolution other than court that are available for family cases. The main types are mediation, arbitration, collaborative law, family group conferencing and family group therapy.

7.5 The Parenting Plan^[41] is an informal agreement designed to help parents discuss what is best for their children. As well as informal agreements on how to bring a child up, it is also possible in Scotland to make and register legally binding agreements known as minutes of agreement^[42].

7.6 Rule 33.^[22] of the Ordinary Cause rules provides that: “In any family action in which an order in relation to parental responsibilities or parental rights is in issue, the sheriff may, at any stage of the action, where he considers it appropriate to do so, refer that issue to a mediator accredited to a specified family mediation organisation.”^[43] There is a similar provision in the Court of Session Rules.^[44]

7.7 The Scottish Government recognises that mediation is an underused means of resolving disputes and that is why we have been supporting Scottish Mediation over the past 10 months to undertake an independent evidence-based review led by an Expert Group on the use of Mediation in the Civil Justice System in Scotland.

7.8 The Scottish Government recognises that mediation, and other forms of dispute resolution outwith court, can play a valuable role in helping to resolve family disputes and we will continue to support the use of mediation and other forms of dispute resolution in appropriate cases. The Scottish Government fully recognises

the concerns that mediation should not be used when there has been domestic abuse, sexual violence or gender based violence.

7.9 Scottish Mediation published the report of the conclusions of the independent review by the Expert Group in June 2019. The report titled “Bringing Mediation in the Mainstream in Civil Justice in Scotland” suggests mandatory referrals to mediation but with an exemption for disputes where there is a risk of domestic abuse, sexual violence or any other gender‐based violence.^[45]

7.10 A proposal for a Member’s Bill on Mediation was published in draft form on 28 May 2019 by Margaret Mitchell MSP and the consultation period on the draft proposals ended on 20 August 2019. The aim of this Member’s Bill would be to increase the use and consistency of mediation services for certain civil cases by establishing a new process of court-initiated mediation that includes an initial mandatory process involving a statutory duty mediator.^[46]

Confidentiality of mediation in international child abduction cases

7.11 In the consultation on the review of the 1995 Act the Scottish Government sought views on whether to make regulations to clarify that confidentiality of mediation extends to cases involving cross border abduction of children.

7.12 Section 1 of the Civil Evidence (Family Mediation) (Scotland) Act 1995^[47] makes provision so that no information, as to what occurred during family mediation conducted by a person accredited as a mediator in family mediation to an organisation approved for the purposes of that Act by the Lord President, is admissible as evidence in any civil proceedings.

7.13 In June 2015, there was an international child abduction case in the Outer House of the Court of Session^[48]. In paragraph 17 of his opinion, the Lord Ordinary said: “In my view the arguments for the proposition that the 1995 Act (the Civil Evidence (Family Mediation) (Scotland) Act 1995) does not apply to mediations about cross-border abductions have the edge.”

7.14 Section 1 of the Civil Evidence (Family Mediation) (Scotland) Act 1995 also makes provision on the descriptions of family mediation to which it applies. Under section 1(2)(e), the Scottish Ministers may make regulations to lay down other descriptions of family meditation which the Civil Evidence (Family Mediation) (Scotland) Act 1995 should apply to.

Aim

Alternatives to court

7.15 The Scottish Government considers that there can be advantages in resolving cases outwith court. The main advantages are that it can be more flexible, solve the issue faster, be less stressful, provide a longer lasting solution and be less costly than attending court.

7.16 However, the Scottish Government understands that there are cases where dispute resolution other than court is not appropriate most notably where there is evidence of domestic abuse. The Scottish Government is also aware of research which suggests that domestic abuse is alleged in half of all court actions over contact raised by a parent in Scotland.^[49]

7.17 The Scottish Government’s general aim is to ensure the views of the child are heard in family cases.

Confidentiality of mediation in international child abduction cases

7.18 The Scottish Government considers that, in policy terms, mediation in relation to international child abduction cases should have the same confidentiality in civil proceedings as family mediation does generally.

Actions

Alternatives to court

7.19 The Scottish Government proposes to produce guidance for individuals, who are considering seeking a court order under section 11(1) of the 1995 Act, on alternatives to court such as the Parenting Plan, minutes of agreement and other forms of dispute resolution. The Scottish Government will consult with key stakeholders on the draft guidance and the best ways to distribute that guidance.

7.20 The Scottish Government will produce a policy paper for the FLC on the implications of extending Ordinary Cause Rule 33.^[22] in relation to mediation to all family and civil partnership actions. This will take account of domestic abuse as outlined in paragraph 4.27 of this strategy.

7.21 The Scottish Government will consider carefully the proposals by the Expert Group and will respond formally by the end of 2019.

Confidentiality of mediation in international child abduction cases

7.22 The Scottish Government will make regulations under section 1(2)(e) of the Civil Evidence (Family Mediation) (Scotland) Act 1995 to ensure that parties are able to rely on the confidentiality of mediation in international child abduction cases in any subsequent civil proceedings.

Template of minutes of agreement

7.23 The Scottish Government intends to write to the Law Society of Scotland and the Family Law Association to suggest that templates for minutes of agreement drawn up by parents, which affect a child’s rights, should record what steps the parents have taken to obtain the child’s views.