Keep CALM and carry on
This year, CALM Scotland achieves 20 years of family law mediation. This feature describes how far it has come, and looks to the next challenge
Demonstrating that alternative dispute resolution is here to stay in Scotland, CALM Scotland (www.calmscotland.co.uk) celebrates its 20th successful year in 2013. CALM (Comprehensive Accredited Lawyer Mediators) was established in 1993 by a group of experienced family lawyers who were keen to provide an alternative process for family dispute resolution.
As part of its national training, CALM is celebrating its 20th anniversary at a conference in St Andrews in March (see panel). The conference is being supported and sponsored by the Law Society of Scotland, and Roseanna Cunningham, Minister for Legal Affairs, is providing the keynote address.
From its beginnings in 1993, CALM has grown to more than 50 members, and it is anticipated that membership will continue to grow each year as a result of CALM’s popular training course. The significant rise in the number of accredited family mediators and the increase in family law mediation is an important part of the overall growth in alternative dispute resolution in Scotland.
Mediation is not a new concept. It is widely used throughout Europe and the USA in family law. In Scotland, however, mediation and other forms of alternative dispute resolution in family law did not really start to receive proper attention until the late 1980s.
The move away from the courts was not a concerted government effort. It developed more organically and was driven by practitioners, keen to address some of the shortcomings of the then options available to their clients.
Despite having been initially viewed with some scepticism, ADR in family law increased in popularity in the 1990s, and mediation, arbitration and collaborative practice are all now seen as viable alternatives to resolving family disputes in the courts.
In 2011, the Westminster Government announced that it would make mediation compulsory for couples seeking a divorce in England. The proposal was not as significant as initially presented by the media. Subsequent details confirmed that the Government was proposing to make only the initial intake session compulsory. Couples could then decide whether they wished to pursue mediation to reach an agreement, or whether they would prefer another form of ADR or to use the courts instead.
The announcement indicated a willingness on the part of the Government to encourage and promote the use of mediation to resolve family disputes. However, two years on, these proposals have still not been implemented.
In Scotland, in contrast to the approach of the Westminster Government, family mediation is seen as a voluntary process, and mediation services are wholly independent from the courts. The Scottish Government has made no announcements similar to those made in Westminster in 2011, and is keen to promote mediation as part of the voluntary process.
Lord Gill devoted a chapter to mediation and ADR in his comprehensive review of the Scottish civil courts. He observed that while most people had heard of mediation, they did not have a clear idea of what is involved and what it can offer, but that those who had taken part in mediation viewed it positively and would use it again. Although he noted that the legal profession had not uniformly accepted mediation and collaboration as worthwhile dispute resolution options, he did not make any specific proposals regarding the increased use of mediation and ADR.
So it seems that, for the time being at least, the drive for increased use of mediation, and other forms of alternative dispute resolution in family law, will be left with the profession, much as it has been for the past 20 years.
Taking control of the process
A mediator can be involved at any stage. Mediation may be the preferred option at the outset when a relationship breaks down, or it may be that the couple have been involved in a long dispute or court process before they agree to a mediator stepping in. Mediation also remains an option post-divorce, where the parties need help adjusting to the court’s decision.
As a confidential, voluntary process that both parties must sign up for, mediation may be chosen for one aspect of the family breakdown, such as agreeing contact with the children of the relationship or arranging the division of property. However, it can also be used in complex circumstances where a number of issues require to be agreed.
A mediator assists the couple to focus on effective communication and mutual understanding, to help them identify common ground and reach an agreement. The mediator does not make a decision. The couple’s solicitors do not take part in the mediation sessions. However, they are an important part of the process in providing legal advice in between mediation sessions, assisting the couple in understanding the legal issues, and being involved in preparing a legal agreement on the basis of the consensus reached at mediation.
The mediation process allows the parties to take part fully in planning their future after separation. This self-determination is positive, as the court process, focused on looking backwards, can be alienating – as well as slow and expensive. Research suggests that parties are more likely to keep to an agreement when they have actively engaged in reaching that agreement.
While the thought of coming face to face with an ex-partner can be daunting, many couples find that it has been cathartic. They will often have avoided communicating directly for some time. Mediation often avoids misunderstandings. Considering information together is beneficial. While couples may not agree following the mediation, they find it easier to disagree and accept each other’s position having worked through the decision-making process together.
Collaborative practice is also on the rise in Scotland. Many of the skills of successful family law collaborative practitioners are similar to the skills required in mediation. A significant number of collaborative family lawyers are CALM members.
All CALM mediators are family lawyers with significant experience in the practice of family law who have undergone training and accreditation by the Law Society of Scotland as family law mediators. CALM members are bound by a code of practice and are required to undergo continuing professional development, training and assessment to maintain their accreditation on an annual basis. They require to seek re-accreditation every three years.
CALM mediators are trained to help the couple identify the issues between them in a calm, constructive and understanding manner and to work towards agreement. Over the last 20 years CALM mediators have helped a significant number of couples to deal with their family conflicts and disputes.
CALM mediators not only have knowledge of the relevant family law that will apply, but also a knowledge and understanding of family dynamics and behaviour. Their training and experience means that they are sensitive and alert to imbalances within relationships, and to other influences which could affect the mediation and negotiation process.
The major challenges faced by the development of mediation and ADR in Scotland in the coming years centre on awareness of mediation, its availability, and perceptions of the process.
Members of the public may be unaware of the suitability of mediation to their circumstances. The Scottish Government reported in 2008 that only 57% of those surveyed in 2007 had heard of mediation. Even those who had heard of mediation struggled to define what it entailed.
There are various misconceptions about mediation, both among the profession and the public. Many people think that mediation is not suitable where there is a history of domestic violence. However, this may not always be the case.
The changing demographics in Scotland have to be considered. Increased numbers of those from different cultures and religions means different relationship dynamics. Other factors such as the parties’ ability to pay for mediation and the continuous changes to the legal aid system in Scotland also require to be addressed.
Despite all of these challenges, and the lack of Government-backed initiatives to increase the use of mediation in Scotland, it continues to flourish. The reason for this is that, as indicated in the Gill review, most couples who mediate are more than happy with the outcome. The same cannot be said of couples who litigate.
This year, CALM is intending to offer non-family mediation training to all of its members in the context of areas other than separation and divorce. This is in response to the demand for trained solicitor mediators in non-family legal disputes.
The foundations laid over the last 20 years mean that mediation is now firmly in the family law “toolkit”. Having played a pivotal role in the progress of mediation over the last 20 years, CALM will be continue to lead participation in the growth and development of mediation in Scotland for the next 20 years and beyond.
Tom Quail is a partner with Wright, Johnston & Mackenzie LLP, Glasgow
Celebrating 20 years
The CALM 20th Anniversary Conference will be held on Friday 5 and Saturday 16 march at the St Andrews Old Course Hotel. As well as offering training to CALM members, it will be a celebration of the success of CALM over the last 20 years. Anyone wishing to attend all or part of the conference should contact Nicos Scholarios, secretary for CALM, at firstname.lastname@example.org
Find out more at www.calmscotland.co.uk