If you are separating, it is important that you make yourself aware of what options are available to help you resolve any issues arising from the separation.  If you have instructed a solicitor, ask him or her about the various methods of dispute resolution open to you.

Mediation is one of those methods available, so if you and your ex partner or spouse decide to go ahead with this, there are two main routes you can decide to take.

If you have legal aid cover or have instructed solicitors

If your legal costs are being met with assistance from the Scottish Legal Aid Board, your solicitors will identify a CALM Scotland mediator to approach.  The mediator will ask the solicitors to seek legal aid ‘sanction’ or additional expenditure to cover the cost of mediation.  Once this cover is obtained, the mediator will contact you and your ex partner or spouse to start the mediation process.  If you have both instructed solicitors but do not have legal aid cover, then the mediator will be approached and each of you will be asked to meet the cost of mediation privately.

The mediator will have asked your solicitors only for the contact details of you and your ex partner or spouse, so generally will not be aware of the details of your dispute other than that you are both keen to resolve things via mediation.  You will both be sent by the mediator some terms and conditions, a referral form and some information about the process, and will be asked usually to liaise with the mediator to arrange an individual session.

If neither you nor your ex have solicitors

It may be that neither you nor your ex partner or spouse have instructed solicitors, or that neither of you instruct solicitors any longer.  In this scenario, if you both wish to go ahead with mediation, try and agree which of our mediators should be approached.  This could be someone local to both of you, or if you live some distance apart from each other, it could be a mediator working somewhere in between.

Once you have agreed which mediator should be approached, then you or your ex partner or spouse should contact the mediator and give over the contact details for each of you.  The mediator will send you both some terms and conditions, a referral form, and some information about the mediation process, and will ask you to liaise with him or her to arrange an individual session.

The individual or ‘Intake’ session

At the first individual session the mediator will explain the process, take some information and note the issues to be addressed.  The mediator will also assess the suitability for joint mediation sessions as well as screen for domestic abuse or any other issues that might suggest that mediation is inappropriate.  The mediator will also assess whether co-mediating with another mediator might be a good idea, for example where at least one of you isn’t really forthcoming or talkative and another person in the room might keep the conversation going.  If there is to be a co-mediation, consideration will be placed as to whether the other mediator should be male or female depending on the circumstances, and for the avoidance of doubt, the cost of the mediation wouldn’t increase in that instance.

If you have any queries about the mediation process, this individual session is a great opportunity for you to have those queries answered.

The joint sessions

If after each individual session, mediation is to go ahead, usually a joint session will be arranged at a convenient time for all concerned.  At that session you and your ex partner or spouse will be given plenty of opportunity to identify concerns and issues to be resolved, and will discuss with the mediator how best to address those concerns, perhaps setting an agenda for a constructive dialogue.

Further sessions will likely be arranged, either joint or separate depending on the circumstances, until the mediation reaches a conclusion.  The sessions usually take around one and a half to two hours each, but one of the great advantages of mediation is that the process can be tailored to your circumstances, so whatever way of arranging the process can be discussed so that it has the best chance of helping you both find a way forward. This includes the possibility of arranging 'caucus' or shuttle mediation or online sessions, so discuss these with your mediator if that would make you feel more comfortable.

Remember that the mediation process is voluntary and confidential.  The mediator will explore with you in the individual session any concerns you have about sitting in the same room with your ex partner or spouse, and will try and address those concerns in setting up the future process.  If a joint session is arranged and during it you don’t feel comfortable about something, simply tell the mediator and he or she will arrange a break or otherwise make sure that nothing gets in the way of a constructive discussion that both you and your ex partner or spouse are comfortable with.

The end of the process

At any point during or at the end of the mediation process, you can ask the mediator to prepare an interim or final mediation summary of what has been discussed.  That summary would not be admissible as evidence in court, but could be released to the solicitors acting for you and your ex partner or spouse if you both wish.  The summary would identify the main issues explored at mediation and also any understandings reached, so it might assist, for example, in the preparation of a legally binding Minute of Agreement.

If the mediation concerns your children, the process might involve you and your ex partner or spouse working out the terms of a parenting plan, and at the end of the process you may be left with a plan which covers all aspects of the future care and upbringing of your children.  In court usually the only issue that can be explored is the living arrangements for the children, but with a parenting plan and at mediation, you can discuss and come to an understanding about, amongst other things, how you and your ex partner or spouse will communicate with each other in the future, how you will handle the education, health and lifestyle decisions that will crop up in the lives of your children.  At the end of the mediation process, therefore, there is every chance that you will be left with a settled understanding about your future lives as separated parents, leaving your children free from the stress of being involved in their parents’ dispute.

Once mediation is at an end the mediator will submit an account for payment, but you would be free to be referred back for future sessions if you both wished.

For more information on the mediation process, see our frequently asked questions, and you can also find out more about the benefits of mediation.

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