Justice Committee

Meeting date: Tuesday, March 6, 2018

Official Report 622KB pdf

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Alternative Dispute Resolution

Agenda item 3 is an evidence session on alternative dispute resolution. I refer members to paper 1, which is a note by the clerk, and paper 2, which is a private paper.

I welcome Nicos Scholarios, who is the secretary of CALM Scotland; Isabella Ennis, who is the chair of the family law arbitration group Scotland, or FLAGS; Rosanne Cubitt, who is the head of practice for mediation with Relationships Scotland; and Dr Marsha Scott, who is the chief executive of Scottish Women’s Aid. I thank the witnesses who provided the committee with written evidence, which is always tremendously helpful to us before we hold an evidence session.

We will move to questions.

Good morning, panel. To start us off, will you outline the types of ADR that are used in family law cases and describe the key features of the methods that are used?

If you are talking about alternative dispute resolution in the legal sense, that means an alternative to litigation. Aside from litigation, family law arbitration is a litigious process, in that it is adversarial. There is a jointly appointed decision maker—both parties agree on who the decision maker is. In FLAGS, that decision maker is a specialist family lawyer—either a solicitor or an advocate who has had arbitration training specific to family law. The person is a member of FLAGS, which has produced its own rules and has its own committee. The parties, with their legal representatives, enter into a contract—the agreement to arbitrate—that governs the dispute. If the parties are in dispute about where the children should spend time, for example, the solicitors, clients and arbitrator enter into a contract stipulating that that is the scope of the arbitration.

The manner in which the dispute will be resolved is also a matter of agreement. It can be resolved by evidence or written submissions, and can take place in any location that suits the people who are involved. If the parties are in a remote location, they can conduct the process by Skype or telephone, or the arbitrator can go to them. There is a huge amount of flexibility, but generally, the parties have their legal representatives and there is an independent decision maker who specialises in family law.

The biggest other alternative is mediation. The committee has had discussions about that, so you probably have a sense of what it is. In Scotland, family mediation is primarily provided by Relationships Scotland and CALM, although there are a couple of private providers.

Do you want me to explain how it works?

Yes. Please expand on that.

Parties can choose to meet with an independent mediator. They will initially have a one-to-one meeting to find out about mediation and to explore whether it is appropriate for their circumstances. They then meet with the mediator, who will help them to have a conversation, explore what the issues are, and then help the parties reach agreement; the mediator does not impose a decision on the parties. The process is quite creative, particularly for cases in which there are children and there are a lot of nuanced issues around where the children might live and how arrangements can be managed. It is a flexible and creative process for exploring options.

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Family mediation in Scotland is also protected in terms of confidentiality. What is said in mediation is not taken to court. If a case collapses and it goes to court, what has happened in mediation is protected and confidential. That allows parties to try things out and lets them feel free to talk about things without feeling as though it will be used against them in court. It is a very productive and creative process.

CALM Scotland mediators are experienced family law solicitors who have trained to become mediators. We have a dual qualification in that we are solicitors in family law and trained mediators.

The process that is offered is similar to that which Rosanne Cubitt outlined. When a case is referred to mediation, it is referred to a CALM mediator. We meet the individual parties to assess suitability for mediation and to obtain a bit of background before we engage with the parties in joint mediation sessions.

I have been a solicitor for 35 years and a mediator for in excess of 20 years. I recognised early that a court is not always the best place in which to resolve disputes—especially in relation to families. In mediation, I deal primarily with contact cases and residence cases, but I also have a number of cases that involve financial aspects that arise from separation. More recently, I have dealt with relocation cases and cases involving family members who live in other areas—for example, disputes over estates or family businesses.

I am an enthusiast for mediation. Although I am a solicitor, I think that mediation is far and away the best way to resolve most disputes—in particular, family disputes. It offers the parties the opportunity to be heard, first and foremost. We use the words “empowering parties”. One of the comments that I frequently hear in mediation from people who have been to court is that they feel that they have not been properly heard. Mediation gives them a chance to speak, and not just for a few minutes but for an hour or two hours. They can have their say about what is of concern to them.

The process puts the parties front and centre of resolution of the dispute. It gives them the power and the permission to consider solutions that suit them, and does not impose solutions on them. Mediation also gives people the time to drill down into and consider the detail that is required in circumstances around, for example, arrangements for children. Not having time for that is often a problem with being in court.

Mediation generally lasts as long as it takes. We have individual sessions, then joint sessions, the number of which varies: it might be two or three, but the process might take much longer. It depends on the parties. The facility exists for the parties to return to mediation and to review and adapt to changing circumstances.

One of the important points about mediation is that it gives parties the opportunity to try things out and then to come back to tweak arrangements. It is often the case with families that things change down the line. One of the parties might get a new partner or there might be a new baby. As children get older their needs change, so it is good to have an opportunity to explore what to do.

Another benefit of mediation is that we look for longer-term solutions, whereas the court system is designed to give a decision on a particular set of circumstances. Obviously, in mediation we also have to address short-term requirements or issues that have to be resolved. However, particularly when we deal with families with younger children, we try to get across to the parties that if they have children who are two or three years old, they are going to be parents for a very long time and are therefore going to have to co-operate, even though they might have separated or might no longer be partners. We therefore try to encourage parties to take a longer-term view of their problems.

On numerous occasions in mediation, I have heard relatively young people—say, in their 20s—relating the unfortunate experiences that they had of being in a broken family when they were younger, and realising that they do not want the same to happen to their children. That is where we can encourage them to think about the longer term; that it is not about taking out their hurt or anger on the other person, but about trying to overcome that and to think about the longer term for the children’s benefit. Another point that we try to emphasise greatly in mediation is that the children are the most important people, and the issue is what is in their best interests. We constantly have to remind parties that they have to put their children, not their own feelings, first.

Can Dr Scott say something about the appropriateness of women going through the mediation process in cases involving violence? You say in your submission that you

“are aware that there will be times where women participate in a mediation process because they are unaware of their right not to”.

I frame my remarks by saying that, in general, Scottish Women’s Aid supports alternative dispute resolution and mediation, but not in the context of domestic abuse. The discussion has been had before in Scotland—indeed, it has been going on for many years—and it has been difficult to resolve. 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. We also very much welcome the input of Relationships Scotland, which has made it clear that mediation is not appropriate in domestic abuse cases.

We need to think about the prevalence of domestic abuse, which affects one in four women in Scotland, and about the number of relationship break-ups—to use a common phrase—that involve domestic abuse and which are not evident to the public eye. Those cases come from a variety of places.

First, as research that is about to be published will confirm empirically, women are routinely advised by their lawyers not to mention domestic abuse when they are involved in court cases, especially if the case involves child contact.

Secondly, we are very concerned that mediation is going on with women who have experienced domestic abuse. That is not because the mediators are ill intentioned and wish to put such abuse to one side—although it is being put to one side—but because the system itself is not competent to deal with domestic abuse. We find it scary that proposals have been made about making meetings about mediation mandatory because—as we are well aware—women’s voices are not equal in a mediation relationship. In fact, women are often pressured into mediation by a variety of mechanisms, be it through their partner, through their lawyer or through the way in which the whole civil justice system works.

We receive reports consistently from our services that the issue is on-going. I got one such report last week that I will share with the committee. I will not tell you where the service is, because the manager has quite a good relationship with Relationships Scotland. They sometimes manage cases together in the contact centre, and they would like to preserve that. The report says:

“Dear Marsha

Sorry to bother you, but I need to escalate an issue with you here ... One of our clients who has interdicts for her children and a non-harassment order in place against her husband for 100 years, by our local court”—

you can imagine the level of abuse that there must have been in that case—

“has received an invitation ... to come to mediation with her husband. We have had our local PF in the office this morning and he is shocked that this is happening, as are we. It was a high-profile case here, and we feel that”

the perpetrator

“is still trying to get to her. We feel that family mediation is totally inappropriate and our client is very disturbed to have been invited to it, and most worried because she has multiple children and she is worried that they will also receive letters of invitation as they come to age and she will have no way to protect them.”

Again, I have to underline that it is an issue of competence across the piece—among family lawyers, mediators and all kinds of folks in the system. As we heard in the debates on the Domestic Abuse (Scotland) Bill, across the public sector understanding of the dynamics of domestic abuse can be very shallow. It is really important that we understand what might be the unintended negative consequences of privileging mediation in the system.

I will follow on from those comments, and from what I heard in the opening statements about the advantages of mediation being flexibility and ensuring that voices are heard, and its being predicated on both sides having access to representation. To what extent is that view predicated on the notion that there is symmetry between the parties in terms of power, resource and their ability to articulate their situations?

I am wondering what the issues are with arbitration. The points around domestic abuse are well made and are obviously at one end of the spectrum, but there are a lot of scenarios in which there is asymmetry in people’s ability to state their cases—there would be issues with mediation or arbitration if one party were able to put points over better than the other. What would you say to that observation?

In family law arbitration, the purpose of the arbitrator as an expert family lawyer is to ensure that the process is fair. In the Arbitration (Scotland) Act 2010, the first obligation is to ensure that the process is fair, efficient and meets all the requirements of natural justice. In family law arbitration generally, each side would also be represented by a family lawyer. An imbalance in representation and power would occur only if one party could afford the arbitration process and the other could not.

The Scottish Legal Aid Board does not currently fund family law arbitration, which means that access to efficient, expert and tailored family-law justice is not available to people who are not financially capable of funding it. That is a big problem, but aside from that fiscal imbalance, if someone is appearing before a family law arbitrator, they have the protection of the arbitrator and their legal representative in the same way that they would have it if they were in court.

The advantage of family law arbitration is that the arbitrator brings to the table an enormous wealth of experience in family cases. They understand not just the point that is in dispute but the raft of reasons that lie behind bringing the point to adjudication—the enormous amount of back story—and, because they have experience that a sheriff or judge may not have, they understand that there are subtle issues at play that might not be evident.

There is no direct representation in the mediation process. However, we frequently advise parties in mediation to consult their own solicitors, so the solicitors are there in the background to provide advice. In my practice certainly, and, I think, in the practices of all CALM mediators—I am sure that it is the same for Relationships Scotland—nobody would ever be forced to make a decision there and then in mediation, without first being given the opportunity to seek advice, so the representation is slightly different in mediation.

The question that Daniel Johnson is asking is primarily about power imbalances. We are trained to recognise that and there are various ways in which we can deal with it. If we feel that one party is being dominated, we can separate the parties and speak to them individually. There are different models and there is flexibility to address power imbalances. If, as mediators, we were to feel that the power imbalance was too great, we would probably stop the mediation process. We are very conscious of such issues.

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There is a generic equality impact assessment that would shine some light on those issues. Women, in particular, whether or not they are experiencing domestic abuse, are more likely to be poor and much less likely to have access to a solicitor, and their access to legal aid is often quite problematic. In general, women walk into those negotiations at a disadvantage. Mediation is intended to redress some of those disadvantages, but I suspect that it is only partially successful in doing that.

I agree with Marsha Scott that, when domestic abuse is an issue, mediation is not appropriate. I agree with what Nicos Scholarios has said about it being part of the job of the mediator to give people an opportunity to speak and be heard. Some of the research—not on domestic abuse cases—suggests that mediation creates the opportunity for some women to have a voice, because the mediator can slow things down. Often, one party is more articulate than the other—it is not always the man—and the role of the mediator is to allow the conversation to happen and to allow the less articulate person the opportunity to speak. For many people, that is empowering—they are given power where they did not have it before. That is an important part of the mediator’s role.

As a children’s rights organisation in Scotland, Scottish Women’s Aid is constantly worried about the lack of children’s and young people’s voices in decisions that are made about their lives. In the context of mediation, we have a lot of exploration to do on how children’s voices can be reflected not as a one-off but as real participation in decision making. We do not seem to have an answer to that.

Some Relationships Scotland mediators have undertaken additional training to work with children. If it is appropriate, if the parents agree and if it seems that it would provide a good opportunity for the child, those mediators can meet the child and feed their views back into the mediation process. There is a facility to hear children’s voices within the mediation process.

In family law arbitration, a decision about the welfare of a child has to be determined under Scots law. The Children (Scotland) Act 1995 imposes an obligation to take the views of the child into account. The arbitrator would be obliged to do that, and so the voice of the child would be heard.

However, it is important to note that the power imbalance in mediation can exist because SLAB funds mediation. The less fiscally flush might feel forced to go to mediation because that would be funded whereas an alternative dispute resolution service such as arbitration, which may be more suitable to them, is not open to them because of a lack of funding. We are not serving all the community fairly if we prohibit, by economic imbalance, the access to alternative dispute resolution through family law arbitration.

My question is mainly for Dr Scott. Given the prevalence of domestic violence and the passing of new legislation on it, which has sent out a clear message on what we think of such offences and behaviour, should there be a robust screening process to ensure that people are suitable for mediation or similar processes? Is that approach appropriate at all if there has been domestic violence? Rosanne Cubitt said that, if such behaviour has taken place, it is not in the interests of the woman—it is mainly women—to proceed. What are your thoughts on a more robust screening process to detect domestic abuse early?

It is important to avoid a binary approach of saying yes or no to mediation and not considering anything else. Isabella Ennis raised the good point that women may feel that mediation is their best option, given a limited set of very bad options. Part of the too-hard box that is involved here is that women in Scotland routinely do not have access to legal advice or to support and representation when they need it. As I mentioned, we have ample empirical evidence that women are being coerced into mediation in many places in Scotland, and we are very concerned that, given that evidence, a one-meeting assessment is not an adequate assessment process.

From much of the evidence that was given during the consideration of the Domestic Abuse (Scotland) Bill, we know that women’s voices about their experiences are discounted all the time. It is highly unlikely that a woman who has few resources and who is being assessed for whether there is domestic abuse will disclose that in a one-off meeting with somebody who probably does not have an enormous amount of training in assessing that. With coercive control rather than physical violence, in most cases, there is probably not a police record that can be referred to, so it is highly unlikely that the system will be sensitive enough to establish safety in the mediation.

Does that answer your question?

Yes—you have made the point very clearly.

Convener, can I ask an additional question of the other panel members?

We are on to supplementary questions now, but there will probably be an opportunity later.

Does Women’s Aid think that it is acceptable for mediation to be used for child contact issues when there is no domestic abuse involved, given the issues with child contact centres?

When there is no domestic abuse involved, we do not have an opinion. However, that is a really big “when”. As I have mentioned previously, in many contact cases, domestic abuse is not flagged when it clearly exists, and we are concerned about that. We do not believe that the way to solve the problem is to keep filtering an infinitely smaller number of cases into mediation and not to have a solution for the others. We need to look at the fact that, at the moment, the system coerces women into being quiet, and we need to consider how we can address that.

You are saying that an alternative solution should be found.

Yes.

Nobody in this room underestimates the impact and seriousness of domestic abuse, but I would like to differ slightly from some of Marsha Scott’s points. I do not think that mediation should be discounted in all cases. There are many cases in which women who are subject to domestic abuse still need to get matters resolved, whether those matters are to do with children and child contact or financial issues. Mediation can offer assistance with that, subject to the right model being chosen and the appropriate safeguards being put in place.

CALM has engaged with Scottish Women’s Aid. Members of Scottish Women’s Aid have given us training on domestic abuse, and that could be further enhanced.

I agree that the screening process could be looked at and made more robust, and we are happy to engage with Scottish Women’s Aid on that. However, I have a slight concern about closing the door fully on mediation as an option in all domestic abuse cases.

Before I bring in Liam McArthur, I want to get some perspective on the scale of the issue. Does Scottish Women’s Aid have any statistical evidence on the percentage of civil family law cases that include evidence or allegations of domestic abuse?

No, but if you look at evidence on child protection, for example, you can see that many of those cases intersect with contact disputes in which domestic abuse has not been identified until after criminal justice and civil justice proceedings. There is a lot of statistical and empirical evidence in that respect. However, as far as the body of civil law cases in Scotland is concerned, I am not aware that that number is available, but I am happy to look for it.

That would be helpful.

The questions that I was going to pursue have generally been covered very well, so I will pick up a couple of points from what has already been said.

With regard to the availability of legal aid, during our round-table evidence session there was a bit of an exchange with Colin Lancaster about forthcoming meetings to discuss legal aid in the context of arbitration. If those negotiations are on-going and there has been no resolution to them, that is fine, but there seemed to be a recognition that this might be an anomaly that needs to be addressed. It would be helpful if you could provide us with an update on those discussions and on whether any further discussions with SLAB are planned.

I have no information to update you with. Historically speaking, though, FLAGS has always tried to engage with SLAB and with Mr Lancaster’s predecessor on the issue. I know that the Faculty of Advocates and some other bodies are engaging in the strategic review, which I understand has said that arbitration, particularly in contact cases, ought to be considered for legal aid funding. Such an approach would be quicker, more efficient and more appropriate, but it is my understanding that it will take primary legislation to allow arbitration to be funded through legal aid. Until that happens, there is not a lot that we can do, although FLAGS is always keen to have a dialogue as long as SLAB or the Scottish Government wants to have that with us.

I declare an interest, as my wife is a trained mediator with Relationships Scotland Orkney.

On the question whether all domestic abuse cases should be kept away from mediation, I was interested in the point about the voice of children. I am certainly aware from cases that have been brought to me that despite the fact that there has been domestic abuse, possibly of a controlling or coercive nature rather than abuse involving violence against the mother, the children in those discussions have, for whatever reason, shown loyalty towards or a desire to make contact with the father. In those circumstances, possibly without some form of mediation, how can contact arrangements be made that give due weight to the child’s interests and wishes? I appreciate that it is difficult to answer that question hypothetically, but such situations seem to arise reasonably routinely and I suspect that you are all wrestling with finding a way of getting through those issues.

I heartily recommend a piece of research that was funded by Scotland’s Commissioner for Children and Young People, which came out a couple of years ago and looked at court reports in the context of domestic abuse and contact.

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Our position is often mistakenly identified as being that we are opposed to contact in all cases, but that is not the case. We think that part of the problem in the system is that decisions are being made without children and young people being consulted about whether they want contact. The research shows that, when contact is ordered, it agrees with what the children want about 80 per cent of the time when they want contact and about 20 per cent of the time when they do not want contact. The system is skewed towards a certain outcome, which is part of our concern.

We have been working with the children’s commissioner to look at alternative models. For instance, in West Lothian there is a specialist domestic abuse children’s rights officer who produces reports for the local sheriffs. Coming at it from a children’s rights perspective, the officer spends time with children as young as four years old to talk about what they would like and then makes an independent report to the court. There are a variety of ways to feed children’s voices in, and we know, because I was working in West Lothian when we set up that post, that sheriffs asked the children’s rights officer what she thought they should decide. She would say that that was not her job and that her job was to communicate to the sheriff the views and experiences of the children.

That is helpful. Is there any reason why the input of that skilled individual, who is trained in those specifics and in articulating the views of the child, could not be factored into mediation or arbitration as well?

I think that we should be creative, and I do not see any reason why that could not work. The point that I want to underscore—which we have in legislation but, sadly, not in practice—is that the safety of the children and their mother needs to be paramount. If an assessment finds that their safety cannot be guaranteed, that is the trump card as far as we are concerned. Given that we have libraries of evidence to say how often, in those cases, children and women experience re-victimisation in the context of visitation and contact, we need to be very robust in the assessment of whether contact is safe, but that is not how the system operates just now.

Am I right in saying that some mediations take place entirely without the individuals sitting in the same room and that that is not uncommon?

It does happen, but in Relationships Scotland, although it is not unheard of, it would be unusual. The point is that mediation is not going to work if there is a coercive relationship. Mediation is a voluntary process, as we operate it, and both parties have to be prepared to engage in a discussion and be able to do so freely. If there is a coercive control situation, mediation is not going to be appropriate, and that decision will be made by the court. The question is then whether the contact centre’s supervised or supported contact can take place, but that is a whole other argument.

I thought that this discussion was about mediation in civil disputes generally, and learning from family cases. My experience of 15 years is that, although mediation has been around as an option in family cases since the mid 1980s, its uptake is still pretty poor. I understand what Marsha Scott says about being wary of a requirement for people to go to an information meeting, but unless something changes there is not going to be a cultural shift towards a more collaborative approach to resolving disputes.

There needs to be some change that ensures that people fully investigate all their options. Mediation is a big one, but there is also arbitration and collaborative law. We need a more formal requirement for people to investigate all those options and still make an informed decision about what is appropriate. The court might well be the appropriate option. I am not saying that we should not have the court—we need to have it—but we also need to do something to make a step-change shift. Mediation has been around as an option for families since the 1980s.

There is a rule of court referral. In some areas, sheriffs use that, but in other areas they do not. Some family lawyers are good at explaining the options to clients, but others are not so good. It comes back to the need for something that compels people to at least investigate all the options thoroughly.

Is it not the case that, to get legal aid for a court case, people need to demonstrate that they have at least explored the option of mediation or some alternative dispute resolution?

Those rules changed a couple of years ago.

Yes—people need to demonstrate that. The Scottish Legal Aid Board has been more proactive in asking about attempts to negotiate or resolve the matter, and a question is asked about mediation. However, in our view, that is still not enough. I think that CALM and Relationships Scotland share a view on what is required. I read the Official Report of the committee’s previous discussion on the issue and I noticed that a couple of points were highlighted, one of which was about information on mediation and other forms of dispute resolution. There is a great need to expand on that to ensure that everybody is well informed about their options.

At the moment, lawyers are obliged to talk about alternative dispute resolution, but there is no overview or checking of that. As Rosanne Cubitt said, the extent to which the matter is discussed is fairly patchy. There has to be a sea change in attitude and approach, and that really has to come from above. Unfortunately, we offer the dispute resolution mechanisms in the context of an adversarial system, which is still the default mechanism for resolving disputes in this country. Speaking as a solicitor and a mediator, in my view, access to that adversarial system is still too easy. There has to be some compulsion—although I hesitate to use that word, because I appreciate that that is a whole different discussion—to at least make people stop and think and explore other options before they jump into the adversarial process.

Relationships Scotland and CALM have made a joint proposal to the Scottish Legal Aid Board and the Scottish Government to pilot in four court areas a more structured requirement for people in contact cases to go to an information meeting to find out what all the options are. That proposal is sitting with the SLAB policy committee at the moment.

Mr McArthur mentioned the steps that the Scottish Legal Aid Board takes. They perhaps help, but only in respect of people who are eligible for legal aid. No hurdle or cause for pause is created for those who are not eligible for legal aid, who still have straight access to the courts and the adversarial system.

I cannot comment on the voice of the child in mediation, but it is important for me to say again that, in arbitration, when the arbitrator is making a decision about a child, the welfare of the child is the paramount consideration. Before a decision can be made, the arbitrator must have explored whether the child has a wish to express a view and, if they do, what that view is. The arbitrator must then determine the weight that is attached to that view. That is all dependent on the age and stage of the child and the circumstances in which the views are expressed. The arbitrator can have an independent court reporter obtain a report or the views of an expert child psychologist. As arbitrators, we have a range of ways of obtaining the voice of the child in a dispute.

The same applies in mediation. Isabella Ennis has properly outlined the fundamental concepts in how we deal with the rights of the child. In law, there is a need to hear the voice of the child, and we certainly seek to do that in mediation, whether that is by discussion with the parents, who ultimately are probably best placed to know what their child is going through, or, where appropriate, by speaking more directly to the child and gaining his or her views. That is certainly an option.

I think we all agree that no one solution is right for every family and every circumstance and we should be moving towards people being able to make an informed choice about the best option for their dispute. Interestingly, Ireland has introduced mediation legislation covering all civil disputes. Many jurisdictions are going down this route, and it is important that we explore it properly here.

Rosanne Cubitt is absolutely right. People ought to be able to make an informed choice about the best method for resolving their dispute and that choice should not be trammelled by their economic wealth.

I welcome the support for the voice of the child, but it is really important that we understand how much our system needs to change for that to be taken seriously. I encourage the committee to look at the joint project between Scottish Women’s Aid and Scotland’s Commissioner for Children and Young People that spoke to children and young people and found out about their experience of intersections with court reporters. Their stories, which were pretty compelling, were put together in a film that is available on the website. Please take a look at it, because it expresses the difficulties of pasting a system designed for adults on top of children and young people.

Liam Kerr has a supplementary question.

We have heard how the court and its more adversarial system might be more appropriate in these cases but, taking a slight tangent, I wonder whether, given that we are looking at ways in which we might improve what we have, anyone on the panel has a view on the one family, one judge idea, under which the same sheriff would hear all the criminal and civil matters in question. Is it worth trialling such an approach?

Given that I hoped that the committee would take up the idea during the passage of the Domestic Abuse (Scotland) Bill quite some time ago, I have to say that I am heartily in support of it. We have had some conversations with a retired US Supreme Court judge in New York who was involved with instituting the approach there, and she is very enthusiastic about it. Indeed, she says that it is more efficient with regard to court time and resources, and it would certainly help to address the problem of the gap between criminal and civil law in Scotland, which we have already discussed and, indeed, which underpins a lot of our civil law discussions.

We have also spoken to a number of sheriffs who would consider such an approach, but a problem with the system is that the way in which the court schedules cases might have to be restructured. There are other issues to address, but we heartily recommend taking a good look at putting that model in place. I think that it is in the gift of sheriffs principal at the moment, though.

We have already touched on this issue and I do not want to labour the point, but I wonder whether you can give us some perspective on how often, in practice, a sheriff or judge would refer a case to mediation and whether the court system is working well or not doing enough in that respect.

The situation is fairly patchy. I do not have any particular numbers for referrals, but certain sheriffs, who might themselves be ex-mediators, are more favourable towards mediation and can see its benefits, while others see fewer benefits and try, to some extent, to mediate themselves in child welfare hearings. Sheriffs should certainly be encouraged to use the mediation option more, even in the context of a court case.

Going back to the one family, one judge idea that Liam Kerr highlighted, I think that having more specialist sheriffs dealing with family cases must be better. I know that that happens in the bigger courts and that there is a resource issue in other courts, but it would certainly be helpful to have someone who is experienced in family law, who can manage a case in a more proactive way and who might be able to bring in other forms of dispute resolution. I do not think that the uptake of alternative dispute resolution for family cases that go to court is sufficient.

As a solicitor, do you see it as the solicitor’s role to advise the family or clients that such options are available to them?

Most good family lawyers will seek to find a resolution. The court is very much the last option, and other options will certainly be explored.

All that I would say is that not all family lawyers are good family lawyers. Some of them are excellent, but not all of them are good.

12:00  

On the one family, one judge plan, that is of course what you get if you go to family law arbitration. You choose your arbitrator, who is an expert family lawyer and who sees the arbitration through from beginning to end. You do not have different sheriffs or judges dealing with different aspects of the case at different stages. In Glasgow, Aberdeen and Edinburgh, we have designated family sheriffs and we now have a judge and a half in the Court of Session, but that does not mean that they can always see through every aspect of the procedure of a case, such as interim decisions. Most of them try very hard, but they do not always achieve that. However, you get that in family law arbitration.

I am not sure whether that links the criminal and the civil aspects.

No—family law arbitration is in civil law only. There is no arbitration in crime.

There is the issue that Nicos Scholarios alluded to about the disconnect between the criminal and civil aspects. A case can be considered in a civil court without any knowledge of previous criminal convictions. That is an issue for our contact centres. We get cases referred to us with no information about other convictions, unless the people happen to disclose that to us. That is another topic on which I am not an expert, but there is a bit of a disconnect between the criminal and civil sides in the way in which cases are managed. I do not know enough about the one family, one judge approach but, if it was to resolve that disconnect, that would be ideal.

Thank you—that is all extremely useful.

My question is for Isabella Ennis and Rosanne Cubitt. What weight do you give to evidence from the child contact centres in the ADR process, bearing in mind that those centres are not regulated, which concerns me greatly?

Relationships Scotland runs most of the child contact centres as well as working on the mediation side. Child contact centres are great places that act as a bridge when there is no contact and help to establish a better relationship. As relationships improve, many families who use our contact centres will access family mediation, which is an opportunity for them to talk about the issues that they have and try to find a way of moving on so that they do not rely on a contact centre. They might use the centre just for drop-off and then, ultimately, have their own arrangements outwith the centre.

Contact centres play an important role in helping children to establish or re-establish relationships with a parent who they do not live with. I know about the concerns about regulation. We support regulation, although there is an issue about the funding that there has historically been for child contact centres. In many cases, contact centres play a really important role as a stepping stone for families where one parent has not had a relationship with a child. Increasingly, we see families who have never lived together and where, some years after the child was born, the parent who has not been living with the family—most often it is the dad, but not always—wants to get to know their child. For the child, there is suddenly another adult who is their parent but who they have never met, so there needs to be a safe place for that relationship to develop and for the parent to learn parenting skills.

We are getting quite off topic, but contact centres play an important role, and mediation can support that process. That is particularly the case in Relationships Scotland, because many of our centres run both those services, so families can move between the two.

One issue that concerns me greatly is that children in a domestic abuse situation are sometimes forced to meet the abuser as part of the mediation in contact centres. There is something seriously wrong with that, because it can affect the child. Does that concern you?

Absolutely.

What are you doing about it?

In cases where there is domestic abuse, children absolutely need to be safe and not be exposed to further abuse. I agree with Marsha Scott that the way in which decisions are being made in the court process needs significant review.

We would argue that a proper risk assessment needs to be done prior to an order for contact being made. When cases come to us that have a court order, we do a risk assessment to decide whether we can facilitate contact that is safe. However, we are not the decision makers on whether that is appropriate within the bigger picture of the family. Much better risk assessment needs to be done when domestic abuse is a concern, prior to cases coming to the contact centres.

We have not heard from Isabella Ennis. Would you like to respond to my questions?

If a decision has been made that contact should happen, the arbitrator, the sheriff or the lord ordinary will have made that decision in a particular context. They do not make such decisions in a vacuum. They will have heard how the contact is proposed to happen, whether it will be in a contact centre and, if so, what the facilities are, how the contact is to be managed and whether it is to be supervised, unsupervised or monitored. All of that will be in evidence that is with the decision maker before the decision is taken.

If such a decision is taken, the decision maker will have taken all those issues into account and considered that, nonetheless, the welfare of the child is best protected and promoted by contact in that environment or an alternative environment. The decision maker will have heard about how the contact centre works. In any event, a FLAGS decision maker will have had professional interactions and experience with the contact centre.

Do you agree that non-regulation is a concern?

In what respect?

It is basically the choice of the sheriff, whatever area he is in, as to what sounds like a good place to go. That evidence was given to us by the Public Petitions Committee, which I was on, and it really concerned us on this committee.

It is not the choice of the sheriff, the FLAGS arbitrator or the lord ordinary. They will have been presented with evidence about a particular contact centre and the facilities that are available there. If the decision maker’s view is that the child’s welfare is best promoted by the model that they have before them, the decision will be taken, and the welfare of the child is the paramount consideration. The decision makers do not get a buffet of options from which they choose independently. Their choice is based on the evidence that is put before them by both parties, one of whom will often want unsupervised, open-ended contact while the other wants supervised or monitored contact at a particular contact centre.

The decision is not made in a vacuum. It is made using the evidence that has been put before the decision maker, and that evidence is tested and explored. In addition, the FLAGS arbitrator brings their own insight and experience as a family lawyer.

So you have no concerns.

I do not know that I have no concerns—

The view has been expressed that there can be concerns but there are checks and balances as far as possible. That does not mean that improvements cannot be made.

I agree with everything that Isabella Ennis and Rosanne Cubitt have said about the process. A decision is made with all appropriate evidence having been presented and duly weighed.

Contact centres play an important role in contact with children, and to some extent they also address the concerns when there has been a level of domestic abuse. Contact centres provide a safe environment and they can be a way of reintroducing a parent to a child. They are absolutely crucial in contact cases in which there has not been a particularly good relationship previously.

I share the concerns about standards. The word “regulation” was used, but I think that “standards” is better. It should be appreciated that contact centres are pretty much charities that rely on donations and they are usually grossly underfunded. If there is a concern about contact centres and standards, there is also a funding issue. They have to be better supported because they play an essential part in facilitating contact between children and parents.

We have gone off topic, so I ask whether the witnesses have any view on whether the English requirement to attend a mediation information and assessment meeting before proceeding to court in a divorce case is a model that should be considered in Scottish cases. I believe that an exception is made if there is any question, evidence or risk of domestic violence.

In broad terms, we support having an information meeting so that people can explore all the options prior to deciding how they are going to take things forward and resolve their dispute. I am aware of some issues with the introduction of mediation information and assessment meetings—or MIAMs—in England, and I think that the situation was impacted by the removal of legal aid at the same time, which sent quite a confusing message. It is difficult to work out the impact of the introduction of MIAMs, as it cannot be looked at discretely from the big changes to the legal aid system down there.

We can learn from that approach, and we can look at what has and what has not worked, but in broad terms, we and CALM Scotland would support some requirement to attend an information meeting to ensure that all the options are explored. In England, that meeting has been called a MIAM, which narrows it down to mediation, but we are keener on what would be called a family dispute resolution information meeting. I realise that that does not make for an easy acronym, but it is more about family dispute resolution and allowing people to find out what their options are. I absolutely agree with the exception for domestic abuse and other such matters, but, of course, people can just decide that they want to go to court. That would be retained as one of the options.

We looked at the arrangements for mediation information and assessment meetings in England and Wales and found that, although there was an exemption for domestic violence, it could be accessed only by providing the judge with evidence such as a police report showing that such violence had taken place. That brings us in a big circle back to all the problems that we mentioned at the beginning, about the systems not being competent to assess such things.

I talked earlier about the element of compulsion. CALM and Relationships Scotland conducted a number of meetings and engaged with Scottish Government and Scottish Legal Aid Board representatives and put together a proposal for a family dispute resolution pilot—we can present that to the committee, if that is deemed appropriate. We felt that that perhaps found the appropriate level of compulsion. We are not saying that people have to be compelled to attend mediation or pursue other forms of dispute resolution before they can enter the court system. The element of compulsion was that attending a meeting would be a requirement, but not an absolute one. Certain safeguards would be built in. For example, if someone refused the option of the meeting, they could give reasons for that refusal—for example, that there had been domestic violence. There would not be the requirement that Marsha Scott highlighted to produce evidence by way of a police report, but our general feeling is that if we want to effect significant change, people have to be given a bit of a push.

My questions have largely been answered, but I am interested in the relationship between mediation and the court. Courts can refer people to mediation, but what happens then? Do they maintain any oversight of the matter? Is there any requirement on mediators to consider whether it would be appropriate to refer cases back to court? Indeed, is there any way in which the court can step back in? Do mediators just go their own way and never come back, or does oversight or communication continue after that point?

It depends on the stage at which a case is referred to mediation, which will vary. Sometimes parties approach us directly, even before they consult solicitors or before a court action has been raised; at other times, cases are referred to us after three or four years of litigation, perhaps at the very last stage of the process.

At the moment, a sheriff is allowed to refer a case to mediation only where there are issues of parental rights and responsibilities, contact or residence, but not in relation to financial matters. The case will be referred to a mediator through the auspices of the solicitors involved in the case. As mediators, we will conduct a mediation process as far as we can—hopefully, to a successful conclusion; if not, we end the mediation process and refer the case back to the solicitors.

Because of the confidentiality issues, we do not produce any form of report as to what has happened, what has been said or who has acted properly or improperly in the mediation context. If we deem that mediation has run its course and a solution cannot be found, the case is referred back to the solicitors and the court process is picked up. If a sheriff refers a case to mediation, they will very often sist or suspend the process to allow mediation to take place. Successful mediation hastens the early conclusion of the court process; if mediation is not successful, the sheriff will pick up the court process again with the solicitors.

12:15  

Following on from that, I am wondering whether there is scope to improve the process. Could consideration of whether mediation might be appropriate happen not just at the start but at other points in the process? I understood your points about the pilot, which were well made, but are there other stages at which mediation could be brought in, which would improve the process?

That is a difficult question, because most cases are very different—indeed, each case is unique—and that is where the sheriffs have an important role. In a lot of contact cases—in numerous child welfare hearings—the parties and the solicitors will be before the sheriff in court but in a more informal setting than that of a final hearing, and there are always options at that time for representations to be made or for the sheriff to consider a referral to mediation.

We have suggested that there should be some form of mediation information meeting before the whole process starts. We think that that would be a good opportunity to invite people to pause, while appreciating that there will be certain circumstances in which a pause is not appropriate, such as if protective measures are required or if there are issues that have to be dealt with. I am not sure when we might introduce a pause at a later stage. Perhaps that could happen before a final hearing is assigned—a final proof that witnesses have to attend—but it is difficult to impose a hard-and-fast rule, given the differences in each individual case.

By that point in the proceedings, a lot of views will have become very entrenched through the adversarial process. The earlier people consider alternatives, the better, and the more likely such alternatives are to be successful.

A lot of damage could have been done by that late stage of the process.

We have talked a lot about domestic abuse, child welfare and contact. Following on from Daniel Johnson’s question, I am keen to hear what would happen—as a specific example, if you like—if, during the mediation process, you become aware of domestic violence for the first time. What do you do? Is the case referred back to the solicitor with no report being made, as you described to Daniel Johnson, or are other mechanisms in place to deal with circumstances involving issues such as domestic violence?

When we undertake mediation through CALM Scotland, we send out an introductory letter with the referral form, which asks questions about safety and whether there has been any domestic abuse. When a case is referred to us, it is likely that those issues have already been aired by advisers and the case has still been thought appropriate for mediation.

When we have an individual session with clients, we speak to each separately to begin with. Those sessions can last from an hour to an hour and a half. We go through the background fairly thoroughly. We have very experienced family lawyers and mediators, who would get a sense of whether there was a significant issue of domestic abuse and whether that would prevent—

What about during the process itself? Given the passing of the Domestic Abuse (Scotland) Bill, which I appreciate has only just happened, what would happen if you witnessed coercive and controlling behaviour during the mediation process?

I would stop the mediation straight away. I frequently do that, and separate the parties. That is where we have to rely on the experience and judgment of the mediator to decide whether it is simply a case of somebody who has got a bit hot headed and perhaps a lot of the angst arising from the separation is spilling over, or whether there is a more serious underlying problem. I have experienced both scenarios, and where I feel that a more serious issue is involved, I will stop the mediation, separate the parties and say that mediation cannot continue—at least, not in its present format. I would very quickly stop that. We cannot expose people to any form of coercive control or verbal or other abuse in the context of mediation.

We have clear policy and practice procedures. If that situation arose in a joint session, we would stop the session and take responsibility for the mediation not continuing. We would not make a report about either party being more or less responsible; we would just say that the mediation was not progressing and that the parties would have to resolve their dispute in a different way.

So a report would not be submitted, even if a crime had been committed.

That is correct, because we would not be investigating that situation. We would just say that the mediation could not go ahead, because it was inappropriate. In mediation, both parties must be able to negotiate and, if that is not possible, mediation cannot progress. We would just say that mediation was not possible; we would not pass any view on that party’s situation beyond the mediation room.

I have pretty much said what we think about mediation where domestic abuse might be involved. As I said, there is the binary problem: mediation or no mediation. Women often wind up in that position because they have really limited choices, and they might not be able to fall back on paying a solicitor to protect their interests. That points to the larger problem that we have with women not being able to reliably access legal support.

We must be careful not to create a system that further privileges alternative dispute resolution such that women find themselves in those situations. If a woman has made the decision that the safest thing for her to do is to try to find some resolution to the contact issues, because otherwise she will be seen as disputatious or non-compliant, we have really put her in a box and put her children at great risk. There is no good solution. I absolutely agree that the mediation should be stopped in the situation that Fulton MacGregor raises, but it is really unfortunate when it gets to that point, because the woman then has a vanishingly small number of options.

You have referred a couple of times to the need for the system not to further privilege alternative dispute resolution. As we have heard, the deployment of those options is fairly patchy. Would you therefore view it to be further privileging ADR if there were more consistency in the availability of the options, or is your concern that there would be, as Mr Scholarios suggested, more of a requirement on individuals to demonstrate that they had at least considered those options? I am interested in what you mean when you talk about further privileging ADR.

We are all well aware of the problems with overcrowded courts and overlitigious approaches to resolving disputes. Women who are caught up in that system and who are experiencing domestic abuse, and who may or may not have been well advised by a family lawyer, are sometimes pushed—sometimes unintentionally but sometimes explicitly—in the direction of mediation because they do not have alternatives. We need to solve the problem of women not having alternatives, instead of expecting mediation to be the solution.

In the context of victims of domestic abuse, if we do not offer alternatives as a way of resolving the issues that have to be resolved, the default situation is a court case, which is horrendous. People think that mediation might be bad, but it is not a pleasant experience to go through a court case in which your former partner, who is perhaps your abuser, sits next to you in court, and in which you are cross-examined by a solicitor who is acting for that person.

Other options have to be available. By all means, let us look at the models that are available or design more robust models to address some of the points that Marsha Scott has made, but alternatives to the default adversarial court system have to be offered.

There are worse outcomes than court. I agree with that description of court, but there is a lot of evidence about revictimisation and the violence and coercion that can happen in the context of dispute resolution. It is really important for us to remember that. Women and children get killed in those situations. I do not want to overdramatise that because it is very rare, but it is really important that we remember that that is what we are talking about when we talk about revictimisation.

It is important that families who are in dispute know what all the options are, that all those options are available to them regardless of their income, and that they have good information that enables them to pursue the best options for their family. No one size will fit all. Mediation will not suit everyone, and nor will arbitration, litigation or collaboration.

It is vital that all families in a dispute know that there is a range of options, and that one of them—or a combination of them—will be best for them. They need access to choice.

Does Fulton MacGregor think that his question has been answered?

I just want to sum up my line of questioning. There seems to be consensus among the panel that many women will choose to use ADR. It is appropriate in many situations and it might also be appropriate for women who have experienced domestic violence.

I am reassured by some of the things that we have been told are in place for those who have experienced domestic violence. However, I would be more reassured if each of the panellists were to commit to increasing training and awareness. Given the new domestic abuse legislation, this would be the ideal time for that. I suppose that the position for women and men who experience domestic violence regularly is the same. When we took evidence on the Domestic Abuse (Scotland) Bill, we looked at what the police do to learn about and respond to such situations. We also looked at what social work does and what the courts do. I suppose that your organisations are no different. Can you give me that commitment?

We are committed to training in domestic abuse. Someone from Scottish Women’s Aid came to look at the training we provide for our mediators and they felt that it was robust. We are keen to do more, and we run training for our practitioners every year in domestic abuse and the emerging thinking in that area.

I acknowledge that there is more to learn, and there is absolutely more that we can do, but we are committed to doing the training and we have worked with Scottish Women’s Aid on our policy and practice procedures, and on training for mediators. We will continue to do that.

FLAGS is absolutely committed to maintaining the training of its already trained arbitrators. We have local training pods across Scotland and we have annual training events. In addition, all our arbitrators are solicitors or advocates and so are obliged to engage in their own continuing professional development and training annually. They have to undertake a set number of hours of training as part of our professional requirements. FLAGS has its own training convener and it undertakes local training.

CALM echoes everything has been said. We also have domestic abuse training for our mediators and, as I have said previously, we have engaged with Scottish Women’s Aid. That training recurs annually, and we are looking at introducing an element of it into our initial core training.

We are certainly open to further co-operation. We do not take lightly the comments that Marsha Scott has made on behalf of Scottish Women’s Aid. I echo what Rosanne Cubitt said: we can always learn more about processes, we can constantly review processes and we can take advice from those who are more expert in a particular field. That is essential.

CALM is absolutely committed to training.

12:30  

In a lot of domestic abuse cases the decisions are made by sheriffs, who often base those decisions on child welfare reports. My concern is that more than 90 per cent of child welfare reports are written by family lawyers, and there is no requirement for them to be experts in domestic abuse. I would like the issue of child welfare reporter training to be noted. There is a real need for better training in domestic abuse, to inform the reports on which the sheriffs base their decisions.

Some of the points that I was going to raise have already been touched on, and I thank you for all your evidence so far. I have two main queries.

First, there was some discussion earlier about future funding of legal aid for ADR providers and provision. However, there was more discussion of greater regulation of the sector and new regulation, perhaps, to encourage uptake and create a cultural shift or sea change. I think it was Nicos Scholarios who said that because we have an adversarial system at present, change is required to come from above, in order to create a more collaborative and problem-solving approach. I would be really interested if witnesses can elaborate on any regulatory reform that they see as being necessary, such as the potential mediation act that was mentioned earlier.

Secondly, we have discussed training, but I also want to consider training within the legal profession in general. Do we need to think more seriously about legal education as well as CPD in the sector, in order to encourage and facilitate increased usage of ADR, so that mediators or arbitrators can give the experienced judgment that is required?

Training is important for the legal profession, but it is also important when considering ADR in the round—I know that from some case work that I have received as a constituency MSP. Do we need to consider whether we have enough psychologists and therapists trained in the area of relationship counselling for families?

There are several questions wrapped up in that, but that is intentional in order to give witnesses a chance to respond to those theoretical points as well as to the practical side.

I will not bang the same drum too much, but I get quite nervous when I hear the word “compulsion”. I understand the sense in which it was being used, in relation to trying to create a system that is a bit more influential about decision making. However, any time that we have any kind of compulsory regulation, there is a sanction involved for people who do not comply. If a penalty was imposed on failure to undertake mediation, that would place women in an impossible position. I need to underscore that.

On training, I absolutely accept the good intentions of the entire panel. The problem is with the proof of the pudding at the moment. Whatever is being done is not obviously and consistently delivering the outcomes that we would like. Therefore, we need to scrutinise really carefully whether training is delivering competence. This is not the first time that this committee has heard us talking about the need for training, not only for family lawyers—which is very much needed—but for judges and sheriffs. I know that that is not in your gift at the moment, but if we can keep the conversation going in Scotland that would be helpful. I suspect that my colleagues on the panel would support that.

Finally, our groups often say that they would like to be able to provide access to counselling for children and adults. However, it is critical that we are careful in thinking about that. The use of counselling often implies that there is a person who is damaged and that that is the problem to fix, rather than the abuse itself. Counselling of perpetrators is not an appropriate response to perpetration. Although in general counselling probably needs to be more available to people who need it in Scotland, I would be very cautious about recommending it as a response in the context of domestic abuse.

On whether we need a regulatory framework such as a mediation act, I am not sure that a rush to regulation is the best first step. As Mr Scholarios said, we need to raise awareness and ensure that ADR and the range of options is known about, and that they are all funded.

On training and education, for lawyers, the point of a law degree is to learn the law of Scotland, and that includes the Arbitration (Scotland) Act 2010. The diploma in legal practice is for those who have learned the law to learn how to apply it in a practical way. The ability to know how to advise a client on access to ADR is best dealt with at the diploma stage. At the recent FLAGS annual general meeting, we had representatives from the University of Edinburgh. FLAGS would welcome a request from any university to provide input to its diploma course on arbitration in a family law context.

On the availability of psychologists and therapists, I do not know what the numbers are but accessing them is, again, a funding issue. If someone has funds to access that sort of expertise to assist with a case, they can find it. However, if someone is in a difficult position or is legally aided, finding an expert who is available to do that at legal aid rates is problematic.

On the regulatory framework and whether we need a mediation act, as a punter looking in, I think that we often bring about cultural change by having a change in legislation, as happened with the ban on smoking and the seat belt legislation, for example. When there is clear intent in legislation, we are more likely to bring about cultural change. A mediation act would show an intent to encourage the use of alternative dispute resolution.

I have said what I needed to say about training for the legal profession, particularly on issues to do with domestic abuse and the impact on children. I appreciate that legal professionals are well trained in legal areas, but training in relation to children and domestic abuse could perhaps be improved.

Relationships Scotland provides relationship counselling and some counselling for children and young people. We have some family therapists but, actually, there are very few trained family therapists in Scotland. It would be good if there were more available but, at the moment, they just are not there. SLAB has said in its new guidance that it will consider paying for family therapy, but the challenge at the moment is that there are not people in Scotland who can provide that service.

The regulatory framework is a big issue. To effect the kind of significant change that we are talking about, there is no question but that primary legislation would be needed. We have tried to look at ways of encouraging the greater uptake of alternative dispute resolution through the pilot scheme that CALM and Relationships Scotland have proposed. In the long term, my position is clear: I am a great fan of alternative ways of resolving disputes rather than using the adversarial system that we have, so anything that moves towards that would be positive.

On training in the legal profession, I agree with what Isabella Ennis has said about the appropriate time being when students have completed their law degree and are doing their diploma prior to entering into practice. However, that training has to be extended into CPD once they have qualified. The more training that is available, not only on ADR but the effects and the impact that it has, the better. It is priceless.

I do not think that I can comment further on the issue about therapists or psychologists. I have no particular specialist knowledge in that area.

You mentioned the fact that primary legislation would be required for the kind of cultural shift that could be envisaged. I appreciate that I am putting you on the spot here, so I will understand if the answers are not forthcoming at the moment, but do you have any idea of what that primary legislation would encompass?

You really are looking at embedding mediation, arbitration or some other form of dispute resolution in the court process. At the moment, the access is still straight to the courts. You would have to examine court rules and how the courts are structured. It is a big issue, obviously.

That concludes our questions. Thank you; that was an excellent session.

12:41 Meeting suspended.  

12:42 On resuming—