Part 1 of the Children (Scotland) Act 1995: review

Part 11: Alternatives to Court

Introduction

General

11.01 This section of the consultation seeks your views on:

• Whether the Scottish Government should do more to encourage Alternative Dispute Resolution ( ADR);
• Mediation and international child abduction cases; and
• Guidance for children and litigants;

11.02 Evidence suggests that court procedure can be costly, lengthy and stressful ^[95] . In appropriate cases, ADR can help parties settle their dispute outwith court or can reduce the number of issues that have to be taken to court. The Independent Strategic Review of Legal Aid that reported in March 2018 called for mediation to be seen as “a credible, readily available alternative to courts”. ^[96]

11.03 In many cases, parties are able to settle contact and residence issues themselves without going to court or ADR. The Parenting Plan ^[97] , which has recently been revised, is designed to help parents discuss what is best for their children. This has recently been updated to ensure that children are at the centre of agreements of this nature.

11.04 It is crucial to ensure that the views and best interests of children are taken full account of by parents when agreements are made on how children are brought up.

11.05 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 ^[98] .

11.06 ADR is not meant to replace going to courts in all cases, but it can have advantages over going to 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 cheaper than attending court.

11.07 However, there are cases where ADR is not appropriate. Scottish Women’s Aid have recently said that:

“There is quite a sizeable evidence base that shows that women and children can be put at risk and, in fact, harmed in the mediation process when domestic abuse is part of the picture” ^[99] .

11.08 There are various forms of ADR available for family law cases. The main types which we are aware of are mediation, arbitration, collaborative law, family group conferencing and family group therapy. These are outlined briefly below.

Mediation

11.09 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.

11.10 Section 1 of the Civil Evidence (Family Mediation) (Scotland) Act 1995 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 the 1995 Act by the Lord President is admissible as evidence in any civil proceedings. There are some exceptions in section 2 of the Civil Evidence (Family Mediation) (Scotland) Act 1995 ^[100] .

11.11 The two organisations approved by the Lord President for the purposes of the 1995 Act are the Law Society of Scotland (for lawyer mediators) and Relationships Scotland ^[101] . Lawyer mediators have an organisation called Comprehensive Accredited Lawyer Mediators Scotland ^[102] .

11.12 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”.

11.13 There are similar provisions in the Ordinary Cause Rules for civil partnership actions and in the Court of Session Rules.

11.14 Relationships Scotland figures for 2015/16 show that there were 153 court referrals to their organisation for family mediation. This is 6% of the total number of mediation referrals to Relationship Scotland bodies. 33% of mediation referrals come from solicitors or the courts. It does appear that some solicitors will encourage their clients to go to mediation prior to going to court, on the basis that the sheriff/judge will refer them at a later stage if not. So the number of referrals as a consequence of the rule is higher than the 6% which come directly from the courts.

11.15 Article 48 of the Convention on Preventing and Combating Violence against Women and Domestic Violence ^[103] (the Istanbul Convention) prohibits the use of mandatory alternative dispute resolution processes including mediation and conciliation, in relation to all forms of violence covered by the scope of the convention. This aims to highlight the negative impact of ADR being used instead of court procedure in cases involving domestic abuse. In cases involving domestic abuse, individuals should have access to adversarial court proceedings presided over by a neutral judge. ^[104]

11.16 In the light of Article 48 of the Istanbul Convention, the Scottish Government are considering whether to prepare a Policy Paper for the FLC. This Policy Paper would ask the FLC whether any changes are needed to Sheriff Court Ordinary Cause Rule 33.22 (and equivalent rules in relation to civil partnership actions and actions in the Court of Session) to lay down that referrals to mediation should not take place when there has been domestic abuse.

Arbitration

11.17 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.

11.18 The Arbitration (Scotland) Act 2010 made provision for arbitration. In Scotland, Family Law Arbitrators in Scotland have established the Family Law Arbitration Group Scotland ^[105] .

Collaborative Law

11.19 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.

11.20 Consensus Collaboration Scotland is an organisation of Scottish lawyers, family consultants and financial specialists which offers collaborative law ^[106] .

Family Group Conferencing

11.21 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 family network. Meets with people attending to discuss the reason for the meeting and invite them to participate;
• Meeting. Everyone attends to discuss the situation. Family meets in private to discuss a plan of action and this is agreed by all attendees; and
• Review. Operation of the plan is reviewed and if necessary further meetings are arranged.

Family Group Therapy

11.22 Family Group Therapy involves a therapist. The focus is on ensuring that parties understand they have different relationships with the different parties involved. Family therapy’s key objective is that any work carried out with a family must fulfil the needs of the child.

Whether the Scottish Government should do more to encourage ADR

Background

11.23 We are seeking your views on whether we should be doing more to encourage ADR as an alternative to going to court.

11.24 The Justice Committee of the Scottish Parliament in their post legislative scrutiny of the Family Law (Scotland) Act 2006 (the 2006 Act) suggested that cases would benefit from increased use of mediation ^[107] .

11.25 There are a number of existing steps taken to encourage use of ADR in family actions. These include:

• The court rules referred to at paragraphs 11.12 and 11.13 above;
• Paragraph 4.38 of SLAB’s Civil Legal Aid Handbook indicates that the Board will ask an applicant for civil legal aid in a contact case if they have tried mediation ^[108] ; and
• Signposting by the Scottish Government ^[109] .

Mediation Information and Assessment Meetings ( MIAMs) in England and Wales

11.26 One potential option to encourage ADR in family cases is to ensure that, in appropriate cases, parties have sufficient information on it before going to court. That is broadly the system in place in England.

11.27 In England and Wales, a person has to attend a Mediation Information and Assessment Meeting ( MIAM) prior to making an application to a court for a child arrangements order (the broad equivalent in England and Wales of contact and residence orders) and for certain other orders. This meeting is to see whether mediation could be used to resolve the issues without going to court. The meeting is between the individual concerned and a mediator and does not necessarily have to involve the other individual.

11.28 There are situations in England and Wales where a person does not have to attend a MIAM before going to court ^[110] . These include:

• There is evidence of domestic violence;
• There are child protection concerns;
• An application to the court needs to be made urgently because, for example, there is a risk to the life or safety of the person who is making the application or their family;
• There has been attendance at a MIAM or another form of non-court dispute resolution within the last four months;
• The prospective applicant or other parties to the case are subject to a disability or other inability that would prevent attendance at a MIAM unless appropriate facilities can be offered by an authorised mediator;
• The prospective applicant or other parties to the case are in prison or subject to other restrictions;
• The prospective applicant or other parties to the case are not habitually resident in England and Wales;
• A child is one of the prospective parties to the case;
• There is not a mediator within 15 miles of where the person lives or having checked with three mediators there is no appointment available within 15 working days; or
• A mediator shows on the court form that mediation is not suitable.

11.29 If we should introduce legislation creating an equivalent of MIAMs in Scotland, any such legislation would also need to make provision so that, as is the case in England and Wales, there would be exemptions from any requirement to attend a MIAM before going to court.

Evidence on mediation

11.30 The UK Government’s Report of the Family Mediation Task Force in June 2014 said:

“Australia, New Zealand and Canada have all had success in promoting mediation and their experience reinforces the hypothesis that the potential for out of court dispute resolution is around 30% of divorcing and separating couples. In achieving that level, Canada has seen a reduction in couples resorting to using the court from 10% to 5%, Australia has seen a 32% reduction in the number of final hearings in children’s cases; and New Zealand has seen an increasing reduction in family matters needing court disposal. Norway estimates that fewer than 10% of cases now go to court”. ^[111]

Options for encouraging ADR in family cases in Scotland

11.31 We have identified three potential options for encouraging ADR in family cases in Scotland:

• The first is no further action, on the basis that steps to encourage ADR in appropriate cases are already in place;
• The second is legislation to try and ensure parties are aware of ADR before going to court. This would involve legislation to introduce to Scotland something similar to MIAMs; and
• The third would not be legislative but would involve more signposting to appropriate services. Paragraphs 11.41 - 11.48 discuss generally whether we should prepare more guidance and information for potential litigants and children involved in family cases.

Pros/Cons

11.32 The benefit of using ADR is that as mentioned in the introduction to this part, it may be quicker, cheaper, more flexible and less stressful than going to court. However, we are aware that ADR would not be appropriate in all circumstances for example where there has been domestic abuse.

11.33 If we were to encourage further use of ADR in family cases (eg by using legislation), we would need to ensure that there was a specific exclusion for victims of domestic abuse in line with the Istanbul Convention on preventing and combating violence against women and domestic violence.

11.34 If we were to encourage further use of ADR in family cases, we would also need to consider how well ADR allows for the views of the child to be heard. The topic of how the voice of the child can be heard is discussed in more detail in part 2 of the consultation.

11.35 The option of adopting a MIAM style approach in Scotland has the benefit of making parties aware of the availability of ADR as an alternative to court. However, research by the UK Government published in 2015 suggested that the applicant only attended a MIAM in 19% of cases ^[112] .

11.36 The options of raising awareness of alternatives to court and providing guidance to parties would give people the chance to use ADR, but leaves it to the individual to decide if this is the best option for their situation. The drawback is that there is no guarantee that people seeking to raise family actions in court will read guidance encouraging the use of ADR.

Question 42): Should the Scottish Government do more to encourage Alternative Dispute Resolution in family cases?
Please select as many options as you want.
a) Yes – introduce Mediation Information and Assessment Meetings in Scotland.
b) Yes – better signposting and guidance.
c) Yes – other (please give details).
d) No – no further action required.
Why did you select your answer(s) above?

Mediation and international child abduction cases

Background

11.37 As indicated in paragraph 11.10 above, section 1 of the Civil Evidence (Family Mediation) (Scotland) Act 1995 provides that:

“no information as to what occurred during family mediation to which this Act applies shall be admissible as evidence in any civil proceedings”.

11.38 In June 2015, there was an international child abduction case in the Outer House of the Court of Session ^[113] . In paragraph 17 of its opinion, the Court said:

“In my view the arguments for the proposition that the 1995 Act does not apply to mediations about cross-border abductions have the edge”.

11.39 Section 1 of the Civil Evidence (Family Mediation) (Scotland) Act 1995 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. Any such regulations would be subject to the negative procedure in the Scottish Parliament.

11.40 We are seeking views as to whether the Scottish Ministers should make such regulations to clarify that confidentiality of mediation extends to cases involving cross border abduction of children. The regulations would clarify that mediation in these cases would benefit from the same level of confidentiality as mediation in other types of family cases.

Question 43): Should Scottish Government make regulations to clarify that confidentiality of mediation extends to cases involving cross border abduction of children?
Yes
No
Why did you select your answer above?

Guidance for children and litigants.

Background

11.41 We are seeking views on whether we should produce and publish more guidance for children and litigants in relation to family cases. This guidance could cover cases where parents are not together and there is disagreement on contact and residence.

11.42 There is already some guidance available in this type of area, published by a number of bodies. Any further guidance produced and published by us could cover areas such as:

• The law generally on contact and residence;
• Alternatives to court (such as ADR); and
• What the court experience is like.

11.43 Any guidance about the court experience may need to manage the expectations of those planning to raise a family action in court. In particular, any guidance could point out that a civil court case on contact and residence might:

• Not be good for the child;
• Not be good for relations between the parents;
• Be lengthy;
• Be expensive;
• Be very stressful; and
• Not have the outcome which the prospective litigant is seeking.

11.44 We could also provide more guidance on a parent using section 7 of the 1995 Act to appoint a guardian to a child in the event of the parent dying.

Pros/Cons

11.45 Any guidance would not require legislation and could help improve litigants and children’s experience of the court process. Further guidance might also be helpful to party litigants (people representing themselves).

11.46 Guidance for children could also help to put the child at the centre of the court case as they could be more aware of the procedure. This would link in with the recommendation of Power Up/Power Down that children want to know what is happening during the court process.

11.47 However, guidance is not a substitute for independent legal advice and cannot cover every individual circumstance.

Question 44) Should Scottish Government produce guidance for litigants and children in relation to contact and residence?
Yes
No
Why did you select your answer above?