Rules and Guidelines for Solicitors

 
If a client comes in with a family law issue, why should we be thinking about mediation? First, because the Law Society of Scotland tells us to! Here are some of the rules and guidelines in place:
 
Rule B1.9 of the Law Society of Scotland Practice Rules 2011: Effective communication
 
You must communicate effectively with your clients and others. This includes providing clients with any relevant information which you have and which is necessary to allow informed decisions to be made by clients.
 
Guidance related to rule B1.9: Dispute Resolution
 
Solicitors should have a sufficient understanding of commonly available alternative dispute resolution options to allow proper consideration and communication of options to a client in considering the client's interests and objectives.  A solicitor providing advice on dispute resolution procedures should be able to discuss and explain available options, including the advantages and disadvantages of each, to a client in such a way as to enable the client to make an informed decision as to the course of action and procedure he or she should pursue to best meet their needs and objectives, and to instruct the solicitor accordingly.  A solicitor providing advice on dispute resolution procedures is also expected to be able to identify where alternative methods of dispute resolution may not be in the best interests of the client. For example, this may be a particular consideration for mediation or arbitration in the context of family disputes or other situations where one party may be at risk of violence or intimidation by the other.
 
And what about clients with cover from the Scottish Legal Aid Board?
 
Guidance related to Rule C3: Peer Review Criteria Guidance
 
This guidance is issued by the Council of the Law Society of Scotland in terms of Rule C3, in order to set out the standards expected of solicitors and practice units in relation to the carrying out of civil legal assistance work. In providing civil legal assistance, solicitors are required to comply with these guidelines.  One of the criteria to be applied by a peer reviewer in civil legal assistance cases, is whether the solicitor gave appropriate advice to the client, where relevant, on alternative options, such as litigation and mediation.
 
So as far as the Law Society of Scotland is concerned, putting aside the other ADR options available it is a requirement that the option of mediation at least is explored with every family client. Further, the Scottish Legal Aid Board also updated its handbook in this area, making it clear that in cases involving parental rights and responsibilities, and contact, amongst other things in order to overcome the reasonableness test and be allowed to proceed with cover, the instructed solicitor will need to:
 
address the extent to which there have been negotiations to resolve the dispute, or attempts to limit the scope of the dispute between the parties, and provide detailed information to show why these negotiations have failed, including providing copies of any relevant correspondence which may disclose attempts made to resolve matters. The Board is unlikely to consider it reasonable to grant any application for legal aid from a party who has not engaged in genuine attempts to resolve the issue without litigation and who did not enter into such negotiations with a realistic view of what the possible terms of settlement of the dispute could be. The Board will take into account the tone of any correspondence entered into in considering whether reasonable attempts have been made to reach a settlement. It will not consider overly robust or combative correspondence to be supportive of reasonable attempts being made to settle matters without litigation.
 
and
 
address whether mediation has been considered or attempted. If it has not been considered address the reasons for this. If it has been attempted details should be given of the outcome and why litigation is considered necessary.
 
If court proceedings are ongoing, it is useful to remember that there is also:
 
Rule 33.22 of the Ordinary Cause Rules 1993
 
In any family action in which an order in relation to parental responsibilities or parental rights is in issue, the Sheriff may, at any stage of the action, where he considers it appropriate to do so, refer that issue to a mediator accredited to a specified family mediation organisation (in other words to a mediator who is a member of CALM Scotland or Relationships Scotland).
 
Commonly, we have witnessed residence and contact cases being referred to mediation from court under this Rule which have involved the situation where some contact with the child is ongoing but the mechanics and arrangements of contact have been getting in the way.  The Rule can be quite useful for solicitors looking for an alternative means of moving forward a family dispute where, for whatever reason, the options in court don’t appear attractive to one or either party, or where the main issue getting the way appears to be the trust and communication between the parties.
 
One other relevant authority to consider is the Civil Evidence (Family Mediation)(Scotland) Act 1995, sections 1 and 2.  In terms of these sections, it is clear that in general, no information as to what occurred during family mediation conducted by a person accredited as a family mediator shall be admissible in any civil proceedings. There are some exceptions, of course, but the general rule is that what happens in mediation, can stay in mediation!
 
So those are the rules and guidelines - but other than that what are the most common reasons solicitors might choose not to refer clients to family mediation?
 
 

Contact CALM Mediators Scotland

If you would like to find out more information on the rules about mediation, or on the referral process itself, contact CALM today.
 
 

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