Children (Scotland) Act 2020 - alternatives to court and funding of alternative dispute resolution pilots: report

Annex A Information on alternatives to court

Mediation

Mediation is a joint decision making process where individuals are invited to cooperate with each other to find mutually satisfactory agreements on a range of topics, including contact and residence, in front of an independent third party. The focus on mediation is in finding the middle ground between individuals.

Sheriff Court Ordinary Cause Rule 33.22 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". There are similar provisions in Ordinary Cause Rule 33A.22 for civil partnership actions and in 49:23 of the Court of Session Rules.

The Scottish Government has sent a policy paper to the Family Law Committee of the Scottish Civil Justice Council on extending these rules to all family actions^[17] (e.g. those about financial provision on divorce).

Arbitration

Arbitration is a more formal process than mediation as the parties enter into an agreement under which they appoint a suitably qualified person to adjudicate a dispute and make an award. On entering into the Agreement to Arbitrate, the parties agree to be bound by the arbitrator's determination.

The arbitrator in family cases is usually a family lawyer who has received special training.

Collaborative law

Collaborative law is based on principled negotiations. In contrast to mediation, where both parties meet with one neutral mediator, in collaborative law each party has their own solicitor and issues are resolved in meetings of all four of them (the two parties and their solicitors) with topics planned in advance.

Family Group Conferencing

Family Group Conferencing (FGC) involves an extended family meeting to resolve issues of child welfare concerns. FGC generally incorporates four stages:

• Referral. Family members agree that FGC is required and an independent coordinator is appointed.
• Preparation. The coordinator identifies the family network and meets with people to discuss the reason for the meeting and invite them to participate.
• Meeting. Everyone attends to discuss the situation. The family meets in private to discuss a plan of action and this is agreed by all attendees.
• Review. The operation of the plan is reviewed and if necessary further meetings are arranged.

Parties settling the case for themselves

In many cases, issues on child contact and residence are settled by the parties themselves, without going to court or to ADR. Parents could draw up a Parenting Plan^[18] In some cases, parties may wish, with the help of solicitors as required, to draw up a minute of agreement for registration in the Books of Council and Session. The meeting should check that the parties consider that settling the issue for themselves is no longer an option.