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| The purpose of this study was to explore the role of mediation in family disputes, looking at the objectives of mediation, how cases come to mediation, the process of mediation, mediation outcomes and the factors that influence whether or not mediation is successful. The study also explored how family law cases are resolved by solicitors without mediation. |
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| The study involved qualitative research among mediators; sheriffs, solicitors and recently divorced individuals with and without experience of mediation. A programme of 100 in-depth interviews was undertaken, supplemented by two paired interviews and three group discussions. The mediation providers in the four regions participating in the research also completed a monitoring form for all mediation cases that concluded between 1 January 1996 and 30 June 1997, and a total of 338 eligible forms were received. |
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| Main Findings |
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- the three main routes of referral to mediation are by Rule of Court, by solicitors, or by the parties themselves
- support for mediation is rooted in views about the value of conciliatory approaches to divorce and separation. This is underpinned by reservations about some aspects of the legal system - and particularly the courts - as a mechanism for resolving issues relating to children. There is less concern about using the legal system to resolve financial issues and more scepticism about the role of mediation here. Consequently, mediation cases predominantly involve issues relating to children only
- there is much diversity within the legal profession - and possibly also among the public - in awareness and understanding of mediation, and different practices among sheriffs and solicitors in referral to mediation. There is somewhat uneven access to mediation and the potential for mediation may therefore be under-exploited
- most mediation parties - around 80% - have already consulted a solicitor at the point of referral to mediation, and legal proceedings have been commenced in around 40% of cases. The legal system therefore provides an importance context for, and gateway to, mediation
- the objectives of mediation are varied, and extend beyond resolution of outstanding issues in dispute. A key objective is the improvement of communication between the parties to facilitate a continuing relationship as co-parents
- children are not generally directly involved in mediation, although it is thought likely that their involvement will increase in response to the Children (Scotland) Act
- three-quarters of mediation cases resulted in a written or oral agreement about all or some of the issues discussed, and issues relating to children are rather more likely to be resolved than those relating to finances
- the study confirms that mediation can be successful in family dispute cases, both as an alternative and as an adjunct to the legal system. The success of mediation is influenced by a range of factors, including the timing of mediation, the relationship between the parties and their approach to mediation, the quality of preparation for mediation, and the quality of mediation itself.
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| Background to the study |
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| Mediation is a process in which a couple, at any stage in the process of divorce or separation including post-divorce, meet with an independent third party to discuss and attempt to resolve disagreements about issues relating to arrangements for children or the division of financial resources. |
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| Family mediation in Scotland has primarily been provided by Family Mediation Scotland (FMS) and by Comprehensive Accredited Lawyer Mediators (CALM). FMS operates twelve independent regional family mediation services, the first having been established in the early 1980s, and FMS mediators are drawn from a range of relevant professional backgrounds. CALM was established in the early 1990s, to provide mediation by experienced family law solicitors who have trained as mediators and are accredited by the Law Society of Scotland. For an experimental period, the Scottish Legal Aid Board may provide public funding for mediation for which a fee is payable for mediation, through either civil legal aid or advice and assistance. |
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| The research study was commissioned to explore the operation of mediation in family law cases, looking at how cases come to mediation; the implications of different referral routes for the nature of the case and the outcome of mediation; the objectives and process of mediation; the outcomes of mediation, and identifying the factors which influence whether or not mediation is successful in different cases. |
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| Findings |
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| Characteristics of mediation cases |
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| 82% of cases involved issues relating to children only (contact, residence or other parenting issues), 3% involved financial issues only, and 15% involved issues relating to both children and money (all issues mediation). 57% commenced mediation before, or within one year of, separating, and 25% within six months. In 13% of cases the couple were still living together at the point of referral to mediation. Most mediation parties (79%) had already consulted a solicitor at the point when the cases was referred to mediation, and in 39% of cases legal proceedings had been commenced. 57% resulted in an oral or written agreement of all issues discussed, 21% in oral or written agreement of some issues, and 22% ended without agreement. 25% of mediation cases were known by the mediator to have involved some form of violence. |
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| Objectives and expectations of mediation |
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| As well as seeking to help parties resolve outstanding areas of disagreement, mediators identified other goals as being to improve communication between the couple, to protect the interests of children and to empower parents in making decisions about their family's futures. They emphasised that agreements arrived at through mediation are intended to be flexible and capable of being changed by the parties as the needs and circumstances of the family change. Parties appeared to enter mediation with little detailed understanding of what would be involved, whether they were referred through the legal system or referred themselves. |
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| Referral to mediation |
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| There are three key routes to mediation: referral by one or both parties themselves (which accounts for 53% of cases), referral by the solicitor acting for one or both parties (24% of cases), and referral by sheriffs under Rule of Court 33.22 (22% of cases). A higher proportion of self-referred cases reached agreement on all issues discussed (66%), than did those referred through the legal system (48% of solicitor-referred and 43% of court-referred cases). Nevertheless, it is clear that prior contact with solicitors can be a positive influence on mediation. The lower level of agreement in cases involving solicitors may reflect a poorer relationship between parties who approach solicitors than among those who do not, higher motivation to make mediation work among those who refer themselves, and the timing of referral to mediation. It seems also that bitter and conflictual contact through the legal system can have a negative influence on mediation. |
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| There is great variation in the use of the Rule of Court by different sheriffs and courts. The volume of referral to mediation appears to be influenced by views about the role of the court in family cases, approaches to the shrieval role, and perceptions of the value of mediation and the sort of cases to which it is best suited. Some solicitors already support mediation and are active and enthusiastic in referring clients, seeing it as concordant with their own objectives and integrating it within their practice. Others see it as being of little value, and their experience of mediation is generally through Rule of Court referrals. Concerns about some aspects of legal practice and procedures, and particularly court processes, for dealing with cases involving children underpin support for mediation. However, there is more scepticism about the value of mediation for dealing with financial issues. Solicitors and sheriffs appear to have a rather narrower conception than mediators of the types of cases where mediation is likely to be helpful, and the potential for mediation may therefore be under-exploited. |
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| The structure of mediation |
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| FMS and CALM operate different intake procedures. In FMS, the parties are seen separately, before joint mediation sessions begin. CALM clients are sent documentation to be completed and returned prior to mediation: all sessions then involve both parties. Around 80% of cases involved between one and three sessions. Parties are encouraged to return to mediation if they want to, and in 16% of cases there had been a prior episode of mediation. Co-mediation (where two mediators are involved in mediation sessions) was used in 22% of FMS cases and 60% of CALM cases. Children are not generally directly involved in mediation, although they may be seen separately by the mediator or a colleague and it was thought this would increase under the C(S)A. Agreements arrived at in mediation are not seen as creating a legally binding contract, although the outcome of mediation might be formalised by legal advisers through a Minute of Agreement or a Joint Minute of Agreement. |
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| The mediation process |
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| Mediation is clearly a highly complex process, and the research highlighted some areas of difficulty in its conduct. These include the degree of control exercised by mediators over the conduct of mediation sessions; the extent to which mediation focuses on the future, rather than encouraging discussion of the circumstances and reasons for relationship breakdown; the ability of mediators to redress imbalances in power between the parties; and arrangements for disclosing abuse and for ensuring clients' safety. Being perceived by both parties as impartial, and controlling the conduct of mediation without being perceived as influencing its outcome, is also clearly challenging. |
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| The role of solicitors in mediation |
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| There is a range of patterns of interaction between the legal system and mediation. Overall, in 80% of mediation cases both parties had consulted a solicitor, in 4% only one had, and in 12% neither had. Legal proceedings had been initiated before mediation in 39% of cases. The legal system is therefore a highly significant context to mediation. There are mixed views among mediators about the value of legal advice before mediation in child focused cases, and it is clear that there is more than one model for effective interaction between the legal and mediation systems. Whilst some parties use mediation as an alternative to any, or any further, contact with solicitors and courts, others seem to see mediation more as an adjunct to the legal system. There is similar diversity among solicitors in how mediation is integrated within their own practice. Legal advice is thought to be more valuable - or essential - before financial mediation. Mediation parties may continue to have contact with their solicitors between mediation sessions, but solicitors are not involved in mediation sessions and contact between solicitor and mediator is not thought appropriate except at the point of referral. |
| The outcomes and impacts of mediation |
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| A written or oral agreement about all or some issues discussed was reached in three quarters of cases, with issues relating to children rather more likely to be resolved than those relating to finances or divorce proceedings. There were reports of improved communication and relationships between parents and children, and within couples. Mediation was valued for helping to avoid or curtail legal proceedings, or acrimonious communication through solicitors. It was also generally thought that mediation often results in savings of time and money. |
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| A number of inter-related factors appear to influence the ability of mediation to achieve these objectives, although the research highlights that mediation can succeed in unpropitious circumstances. The timing of mediation - particularly the psychological and emotional stage reached in the process of separation rather than the chronological stage - appears to be influential. So too are the parties' attitudes towards the relationship. The quality of the parties' preparation for mediation is important. Parties need to be willing and able to engage with mediation, to have some objectivity, to talk about their feelings and to be flexible. Finally, the quality of mediation is also clearly influential. |
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| Discussion |
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| The study highlights a number of implications for the development of policies relating to mediation and its integration with the family law system. It is clear that mediation can be used successfully in the resolution of family disputes. There is no single model for effective interaction between legal and mediation systems, and mediation can be successful both as an alternative to legal systems and an adjunct to them. Some solicitors see mediation as a very different and separate process from their own involvement; others emphasise commonality in their objectives and the objectives of mediation, and integrate mediation successfully within their own practice of pragmatic dispute resolution. However, the legal system currently provides somewhat uneven access to mediation, and the scope for mediation appears to be under-exploited. |
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| The process of mediation is clearly a complex, skilful and challenging one. The study identifies a number of areas of difficulty, and there appears to be scope for further development of mediation practice. However, the quality of service provided by the mediator is not alone influential on the outcome of mediation: the research suggests a number of conditions, which appear to be optimum for the effective conduct of mediation. The effectiveness of mediation may be increased by more consideration of the types of cases where it is most successful, wider understanding within the legal system and among the general public of its processes and outcomes, and better preparation of the parties to inform their decision whether or not to proceed with mediation |
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| About the study |
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| This study was commissioned by the Scottish Office Legal Studies Research Group on behalf of the Civil Law and Legal Aid Division. The research was undertaken by Jane Lewis of Social and Community Planning Research and is part of a programme of work, which looks at practice and policy in family law. |
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The Role of Mediation in Family Disputes in Scotland (1999), the research report summarised in this Research Findings, may be purchased (price £5 per copy). Cheques should be made payable to the Stationery Office and addressed to:
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