Mediation: The Future of Dispute Resolution in Contemporary Scots Family Law

Mediation- The Future of Dispute Resolution in Contemporary Scots Family LawMediation: The Future of Dispute Resolution in Contemporary Scots Family Law

THOMAS McFARLANE*

Abstract

The merits of family mediation have been capitalised on throughout the world, with many jurisdictions embracing the method as an alternative to court-based dispute resolution. It has now become routine practice in several countries, including the USA, with its influence continuing to grow throughout Europe, South Africa and Australia. Indeed, some countries have even made it compulsory. However, to date, the Scottish Government has failed to exploit its usefulness. This paper will measure the success of the implementation of family mediation domestically and internationally. Through building upon the lessons which these countries have learnt, recommendations will be made which may guide the future approach taken in Scotland. It will be contended that the ‘Scandinavian’ approach which makes family mediation compulsory not only illustrates how successful the method can be but also provides much needed guidance as to how best to implement legislation to ensure its effective transition into the dispute resolution framework in contemporary Scots family law.

1. Introduction

Mediation is not a new concept. In fact, the idea of parties in dispute turning to someone else to help them ‘sort it out’ is so obvious that our progenitors did it without much comment. Mediation is said to have been implemented throughout Ancient Greece from around the 8th century BC onwards1 and in China it can be traced back to the time of Confucius.2 Despite this, it is only in recent years that governments across the world have begun to embrace this method of dispute resolution as a viable alternative to civil litigation in disputes encompassing family law issues. Indeed, some countries have even made it compulsory. However, this has not been the case in Scotland where the Scottish Government has failed to capitalise on its usefulness. This is despite the fact that for nearly two decades, academic discussion and popular articles alike have argued for an increased use of mediation in Scotland for determining family law related disputes.

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