Wed 14 Feb 2024

Mediation: The Path to Resolving Child Disputes

Making arrangements for your children after separation is one of the most difficult areas for parents. Even with all the best intentions there may be multiple hurdles to overcome as your family structure changes. As solicitors and family mediators, we are often approached by parents looking for support, information and advice on child related issues. Let's address some of the questions we get asked the most

What sort of contact arrangement is typical after separation?

While every family is different, typically children will reside with one parent and have some agreed time with the other. The amount of contact completely depends on your family circumstances and the children. Often young children may not cope with longer periods away from their main care giver. For example, a child who is breastfeeding or used to a stay-at-home parent may struggle to settle away from them overnight. In comparison, an older child or teenager who is used to seeing both parents daily may struggle to spend long periods without seeing their other parent. Other factors to take into account are similar to those outlined below. In short there is no typical contact arrangement, and the level and type of contact needs to work for your family and most importantly what is best for the children.

How do shared care arrangements work?

Shared care is a concept where children reside between two homes and do not have one main home. Usually when parents separate, children will reside with one parent and spend time with the other parent. In some situations, parents hope that after separating, their children will have two main homes and spend scheduled time with each parent equally. While this arrangement can work for some families it can have some challenges. Some things to think about before a shared care arrangement can be implemented include:

  • How old are your children? Would they cope with moving between homes regularly?

  • Where are your homes located? How much travelling would that involve for the children?

  • Where do the children attend school? Would they manage to attend from both homes?

  • Can both parents afford to have permanent bedrooms for the children in each home?

  • What extra-curricular activities do the children do and on what days? How would that work?

  • What are both parents working schedules like? Who would be off if the children were unwell?

  • Can both parents afford it financially? How would child maintenance work?

  • Is communication between the parents open and cordial.

In most cases, equal shared care may be practically difficult or not in the children's best interests as a solution.

How do I talk to my former partner about matters involving the children?

Sometimes after the breakdown of a relationship parents struggle to communicate effectively. Disagreements about matters involving the children can become even bigger after separation. We often hear about issues such as parents not agreeing to holidays abroad, or disagreements about which school the children should attend. Even matters such as if the children should receive immunisations can be a cause for disagreement.

The best resolution to all these types of issues is a method of communicating openly and directly where possible. If that is not possible, solicitors may recommend parties agree to use some form of app to communicate in instances where parents don't wish to speak in person or on the phone. The benefit of a communication app is that everything is in writing so that can be referred to in the event of any confusion later on. In addition, if parties agree to communicate about important matters through an app, they will be less tempted to have heated conversations in the presence of the children at handovers.

What if we can't resolve matters between ourselves?

Even with the help of an app sometimes parents just don't agree to what is best for their children. In these instances, there are several options available.

Parents can use a family mediator to assist them in resolving disputes. A family mediator helps parents by facilitating discussions. They are independent. They offer information about what the law says on family matters and can assist parents with the tools needed to reach a solution out of Court. Mediation is a voluntary process.  If parents reach an agreement, this can be incorporated into a Parenting Plan parents take to a solicitor to put into a formal agreement if that is desired.                                                                                      

If mediation is not suitable or either parent does not want to participate, then parents may also choose to instruct solicitors to correspond with each other and try to come to some sort of negotiated agreement. If matters still cannot be agreed, an application can be made to the Court to ask for judicial assistance. The Court would usually look at matters and can even appoint an experienced family and child officer to assist them to investigations before making any orders.

The Court is of the view that contested child proceedings are very difficult for parents and will of course impact the child involved. They encourage parties to use mediation or other out of solution to resolve issues. Studies have shown that there is an emotional impact on children knowing their parents are in Court Proceedings about them. In instances where the welfare of the child is a concern then Court proceedings may not be avoidable but in instances where disputes are more manageable it is usually better for everyone that parties can discuss their issues and reach some sort of resolution together. A mediator can facilitate this.

We have an order in place but it isn't working anymore, what do I do?

After the Court has made child arrangements order, or parents have entered into a written formal agreement, parents will usually then follow that but they may reach a point where it no longer makes sense as matters have moved on. For example, agreements and orders made for a 3 year old may not suit an older child who is attending school and now has other needs to consider. It is not always necessary to go back to Court or a solicitor to change an order. If parties can agree between them a variation or amendment then they can proceed with that but only if it is agreed. 

In instances where parents cannot agree how best to evolve the arrangements or if you consider that the current arrangement is no longer working but the other parent does not agree and wishes to continue with that arrangement, then you should seek assistance from a family mediator or solicitor before changing  any arrangements.

If you require advice on arrangements for your child after separation, Morton Fraser MacRoberts offers family mediation services to separated couples throughout Scotland, England & Wales. Our mediators can conduct mediation sessions from our Edinburgh and Glasgow offices, and also virtually. Savita Sharma (who is a Dual Qualified solicitor (Scotland, England & Wales)) is an English trained family mediator, meaning she's uniquely placed to offer mediation in terms of English law in Scotland. Along with her colleagues Lucia Clark and Karen Wylie (who are Scots qualified family mediators), she is also able to offer co-mediations where a hybrid solution may suit parties.

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