Accredited mediators

1. The Council of the Law Society of Scotland’s system of accreditation of specialists by a suitably qualified Accreditation Panel confers specialist status on practising solicitors who can demonstrate expertise gained from practising in the specialism and can show significant experience in that specialism. Each panel is made up of solicitor members experienced in either family mediation or commercial mediation.

2. On original application applicants should be able to demonstrate suitable training and have relevant experience. The applicant must produce a report about their mediation skills from the mediation trainer who observed them in role plays as a mediator during a foundation mediation training course lasting more than thirty hours.

If the applicant has completed such a foundation mediation training course more than three years prior to the date of the original application, without proceeding to accreditation, then they require to undertake a further foundation mediation training course lasting no less than 15 hours and to produce a satisfactory report about their mediation skills from a mediation trainer who observed them in role plays as a mediator during that course.

3. ‘Relevant experience’ is assessed by the Panel taking into consideration among other factors the following areas in assessing Applicant’s fitness to be Accredited:

(a)   Role in those cases, if any (advisor, observer, mediator).

(b)   Attendance at suitable training course (including in-house courses where appropriate).

(c)    Participation in teaching at training courses (including in-house courses where appropriate).

(d)   Authorship of books, articles, website and in-house materials.

(e)   Discipline, complaints and claims record.

(f)    Other relevant matters.

(g)   References.

4. Where an applicant was accredited or re-accredited on a date no more than six years prior to the date of the current application, a satisfactory assessment report from a suitable mediation assessor will require to be submitted with an explanation about why re-accreditation was not sought within three years and evidence of CPD and mediation practice since last accreditation.  If the applicant had last been granted accreditation more than six years before the date of the current application, they require to undertake a further foundation mediation training course lasting no less than 15 hours and to produce a satisfactory report about their mediation skills from a mediation trainer who observed them in role plays as a mediator during that course.

5. If the application is successful, the applicant will be accredited as a Family or Commercial Mediator for a period of three years and will be entitled to apply for renewal of the accreditation at the end of that period. The onus is on the applicant to apply for re-accreditation, no less than two months in advance of expiry of the accreditation period.  Re-accreditation will run from the expiry date notwithstanding the date of a Panel’s meeting or consideration of an application.

6. Applicants should advise the panel of the details of any complaint intimated to them by the Law Society of Scotland which has been made against them or their firm as a result of their actings in the course of the last three years.  The Law Society of Scotland may delay making a decision on the application until any such complaint or claim has been decided or resolved.

8. In the event of the panel refusing an application, the applicant may ask the panel to reconsider their decision within 28 days of intimation of that refusal and may submit additional material in support of their request.  In the event their review results in a further refusal, they can appeal that decision in writing to the Education and Training (Policy) Committee of intimation of that further refusal and the panel will make all information relating to the decision available to the Education and Training (Policy) Committee for that purpose. 

9. Applicants should be aware that the Council of the Law Society of Scotland may suspend the accreditation before the expiry of the three year period. This may take place if circumstances come to the attention of the Council which would make this course of action appropriate.

10. Accreditation is by means of a process of assessment and adjudication by the panel. The panel reserves the right to request that an applicant attend an interview. 

11. Any guideline or regulation may be relaxed or waived in exceptional circumstances on application by the Accreditation Panel to the Education and Training (Policy) Committee whose decision shall be final.

12. Applicants should give particulars of two referees.

In order to be eligible for reaccreditation, Family Mediators require undertake no less than 15 hours of continuing professional development each year, comprising:

• A minimum of six hours mediation training;
• Five hours Family Law training of which two hours require to be on financial provisions.
  • One peer review in co-mediation per annum (which may include role-play) and,
  • One assessment of competence by an approved assessor in each three-year period of accreditation.

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From 11 March 2019 there is a requirement for accredited Family Mediators to comply with the terms of a Code of Conduct and Statement of Principles for Family Mediators. This has been developed at the request of the Lord President  in consultation with other mediation organisations and working Family Mediators to demonstrate the high standards Family Mediators work to.

The Code and Statement is set out below:

Code of Practice and Statement of Principles for Family Mediators

Introduction

The Law Society is approved to accredit Family Mediators under the Civil Evidence (Family Mediation) (Scotland) Act 1995. Each family mediator is accredited for period of three years, unless the Family Mediator ceases to hold a practising certificate, voluntarily gives up their accreditation or their accreditation is withdrawn by the Society. At the end of each period of accreditation the Family Mediator may apply to be re-accredited.

Applicability:

This Code of Practice and Statement of Principles applies to Family Mediators accredited by the Law Society of Scotland.

Definitions:

The Society: Law Society of Scotland

Family Mediator: a solicitor accredited as a Family Mediator by the Society

Family mediation:  Mediation is a voluntary process between the parties. Its purpose is to assist parties to improve communication between them with a view to addressing issues arising from a separation or divorce by identifying mutually acceptable proposals

The parties: refers to the persons who have agreed to pursue mediation, and are participating in a mediation process which the Family Mediator has agreed to conduct. 

The Act:  The Civil Evidence (Family Mediation) (Scotland) Act 1995.

Role of the Family Mediator: The Family Mediator’s role is to facilitate the parties’ discussions, in an even handed and fair manner.

Independence: 

1. The Family Mediator must be independent and must not have acted previously for either or both of the parties as a solicitor.
2. The Family Mediator must have no business, financial or close social connections with either or both of the parties.
3. If the Family Mediator belongs to, or was previously with, a law firm which acted or is acting for either or both of the parties, the Family Mediator should consider whether it is appropriate to conduct the mediation notwithstanding that he or she had no direct dealings with the parties.
4. If the Family Mediator considers that any previous actings were distant, and not related to the issues raised in the mediation, the Family Mediator should disclose to the parties the previous connection with the law firm and allow the parties to decide if they wish to engage an alternative Family Mediator.

Interests of the parties:  

1. The Family Mediator must conduct the mediation process in a manner which is in the interests of the parties, subject to any over-riding interest of the law and any court proceeding between the parties.
2. A Family Mediator must not accept instructions to mediate if not able to offer convenient appointments and expeditious service to the parties. 
3. The Family Mediator must be non-judgmental in approach and careful not to impose his or her values on the parties or the mediation process. The Family Mediator shall not conduct a mediation between the parties in any way in which the Family Mediator perceives as likely to cause harm to any child.
4. The Family Mediator must not attempt to arbitrate between the parties or to impose decisions on them. 

Conflict of interest:

Family Mediators necessarily will be working with parties whose interests may be in conflict. However, Family Mediators must still be aware that a conflict of interest may exist or could arise between the Family Mediator and one or more of the parties. Family Mediators must comply with the following:

1. There must be no conflict of interest between the personal and professional interests of Family Mediator and either or both of the parties.
2. It is the Family Mediator’s responsibility to identify such a conflict of interest, and to make enquiries to ascertain if there is any potential of such a conflict arising.
3. If the Family Mediator becomes aware of such a conflict of interest or potential conflict of interest during the mediation process, then he or she shall terminate the mediation or shall disclose the conflict of interest and discuss with the parties the appropriateness of the Mediator continuing to mediate.

Confidentiality:

The Family Mediator shall be subject to a duty of confidentiality to the parties. This is subject to the following exceptions which must be disclosed to and accepted by the parties to the mediation in writing before the mediation begins:

1. intimation to the parties' solicitors that the parties are engaged in mediation;
2. disclosure to the parties' solicitors of the financial information revealed during mediation and that any such information may then be used by the parties and their solicitors as they see fit including using the information in a Court action;
3. disclosure to the Police, a doctor or social worker of any physical harm or suspicion or threat of harm to either or both of the parties or their children but only in exceptional circumstances and only if either or both of the parties decline or delay taking action to prevent or seek discontinuation of the harm.
4. disclosure required under any relevant legislation.

Relationship with the parties:

1. The Family Mediator must be even-handed with the parties and must not communicate with one party without communicating in similar terms with the other, save for purely administrative discussions in general terms to set up the mediation or arrange mediation appointments.
2. The Family Mediator must refuse to receive any information during the mediation process which is not to be disclosed to both of the parties, save that if one of the parties, out of apprehension for his or her safety, does not wish to disclose his or her address and phone number to the other, the mediator may receive that information confidentially. An exception to this requirement is set-out at paragraph 4.
3. The Family Mediator must not have any discussions with any 3rd party, including the parties’ solicitors or any other person acting as an advisor to the parties, without the consent of both parties.
4. Information provided at any preliminary individual mediation session will be considered as confidential and only to be disclosed with the consent of the party providing the information.    

Safety:

The safety of the parties and the Family Mediator in conducting mediations must be a paramount consideration. Family Mediators must be alert to the possibility of violence, and other domestic abuse and control, such as coercive control, between the parties.

If domestic abuse and control has not emerged as an issue at the commencement of the mediation, the Family Mediator should remain aware of its possible existence throughout mediation.

If mediation has to be terminated for this reason, then it must be terminated safely and alternatives explored with the clients. Family Mediators must work to ensure that at all times the principles of voluntary participation, fairness and safety are upheld. 

Welfare of Children:

1. Family Mediators must have a special concern for the welfare of the children of the family. They must encourage the parties to focus on the needs of the children as well as upon their own and must explore the situation from the children’s point of view. In order to do so, Family Mediators should: 
   • Encourage the parties to consider their children’s own wishes and feelings.
   • Where appropriate, discuss with the parties whether and to what extent it is proper to involve the children themselves in the mediation process in order to consult them about their wishes and feelings.
2. If, in a particular case, it is thought that it may be appropriate to consult any child directly in mediation, the Family Mediator carrying out the direct consultation, including the preparation with the parents should be trained for that purpose and must obtain the child’s consent. Appropriate facilities should be provided.
3. Where it appears to a Family Mediator that any child is suffering or likely to suffer significant harm, the mediator must indicate to the participants that they should seek help from an appropriate agency. If the parties refuse to or delay to act, then the Family Mediator may disclose this to the appropriate authorities as set out in the exceptions to the duty of confidentiality as set out above.   

Open discussion: “without prejudice”:  

Mediation shall be conducted on a "without prejudice" basis.

 In order to facilitate this, the Family Mediator must inform the parties:

1. That any statements and negotiations made during Family Mediation cannot be founded on in any Court action save with both parties' consent, in terms of the privilege conferred by the Act.
2. As to the limits of the protection from disclosure under the Act.   They should be informed that the mediation process may result in the disclosure of financial information as fact. The parties must be informed that in the event of disclosure of factual financial information, that information will not be privileged but may be used by the parties in any Court action.

In addition, the parties should be asked at the commencement of mediation to undertake not to call the Family Mediator as a witness at Court or to seek an order for the production of the Family Mediator's records.

Legal advice:

1. The Family Mediator must not provide legal advice to either of or both of the parties. However, they may give information to the parties about the general principles of the law applicable and the Court’s role. The parties must be advised to take their own independent legal advice on any legal issues arising in relation to their particular circumstances. The Family Mediator may also suggest that other specialist advice be sought (e.g. from an Accountant, Child Psychologist, Actuary etc.).
2. If any of the parties is not represented by a solicitor and declines to instruct one then the Family Mediator must inform that party that it would be in his or her interests to do so to maximise the benefits of using mediation and to ensure that mediation leads to a fair and acceptable outcome for the parties. The Family Mediator must not act as legal adviser to any unrepresented party nor recommend any settlement or course of action. 
3. The Family Mediator must not obtain information from third parties. Information gathering for the mediation should be undertaken by the parties. The Family Mediator may make suggestions as to relevant sources and documentation but has no power of independent enquiry.

Good communication:

It is essential to the process of mediation that clear information is given to parties and as appropriate, their solicitors, and any other relevant advisors, and that without delay. Before mediation begins the parties should be given an “Agreement to Mediate”, a copy of which should be signed by the Family Mediator and both parties prior to commencing mediation. Said Agreement must highlight the intention that the process be "without prejudice" but for the openness of the financial information gathering.

At certain stages of the mediation process and at its termination the Family Mediator may prepare for the parties a summary of the mediation to date, any final proposals identified , and a financial summary. In limited circumstances an Interim Agreement may be reached and recorded. The Family Mediator must produce such summaries expeditiously and explain that any financial summary and any Interim Agreement reached and recorded can be produced in any subsequent court action.

Fair and reasonable fees:

1. The Family Mediator must disclose his or her level of fee charging in advance.
2. These fees must be fair and reasonable.
3. The parties should be informed about the availability of legal aid for Mediation and to consult a solicitor if they wish to establish if they are eligible for legal aid.
4. It is possible for one party to be solely responsible for all the Family Mediator's fees provided that this does not detract from the impartiality of the process.

Data Protection and the General Data Protection Regulations (“GDPR”):

1.  Family Mediators must comply with all relevant statutory provisions relating to data protection . 
2. The parties to a mediation process must be informed of the Family Mediator’s Data Protection Policy, and that data will be processed in accordance with the relevant legislation.

Termination of mediation;

The Family Mediator must not terminate mediation except on good cause, which need not be disclosed to the parties. Either party to the mediation may terminate it summarily.

 The Family Mediator must terminate the mediation if, after appropriate exploration with the parties:

1. The Family Mediator is not satisfied that full disclosure of financial matters has been made by one or both of the parties or; 
2. It appears that one or both of the parties is or are being untruthful, manipulative, threatening or abusing the mediation process for their own ends (e.g. by protracting the mediation to maintain a status quo);
3. One or both of the parties is or are refusing to disclose material or relevant information including any such information disclosed to the Family Mediator in the preliminary individual mediation session which is not being subsequently disclosed in joint sessions.

Training Requirements:

Currently accredited Family Mediators:

Once accredited, Family Mediators must undertake no less than 15 hours of Continuing Professional Development (CPD) per annum, comprising:

1. A minimum of 6 hours mediation training;
2. 5 hours Family Law training (including a minimum of 2 hours on financial provisions);
3. One peer review in co-mediation per annum (which may include role-play)

In addition, Family Meditators must complete one satisfactory assessment of competence by an approved assessor in each 3-year period of accreditation.

Accredited Family Mediators whose accreditation has lapsed:

1. Where an applicant for accreditation as a Family Mediator (“the applicant”) was last accredited or re-accredited on a date no more than six years prior to the date of the current application, the following will be required to be submitted with their application:

• a satisfactory assessment report from a suitable Mediation Assessor
• explanation about why re-accreditation was not sought within 3 years and;
• evidence of their relevant CPD and mediation practice since they were last accredited. 

2. Where an applicant had last been granted Accreditation more than six years before the date of the current application, they will be required to:

• undertake a further foundation mediation training course lasting no less than 15 hours and ;
• Produce a satisfactory report about their mediation skills from a Mediation Trainer who observed them in role plays as a family mediator during that course.

Failure to Comply:

Failure to comply with this Code and Statement may result in the Family Mediator’s accreditation being withdrawn.

For further information about this Code and its requirements please contact Elaine MacGlone, Secretary to the Accreditation Panel

The fee payable to apply be accredited or re-accredited as a mediator is £220 plus vat (£264). The fee is non-refundable.