SCOTLAND Law and Practice Contributed by: Ciara Wilson, Gillian Crandles and Lauren McDonach, Turcan Connell
tion and reaching a decision on what is in the best interests of the child. Children’s Evidence Children can give evidence in court – although it is uncommon in family law cases, as children should be shielded from their parents’ dispute as far as possible. If a child is called as a witness and they are under the age of 16, they would be classed as a vulnerable witness and special measures can be used to help the child give evi - dence. This includes taking of evidence remotely or by a live link, use of a screen, or assistance from a supporter in court. 3.4 ADR Mechanisms Outside the Court Process ADR refers to several different methods used to resolve disputes other than applying to court. The following are the most commonly used types. Mediation This is a popular method used by many separat - ed parties to resolve both the financial aspects and childcare disputes arising from their sep - aration. It is a voluntary process whereby an independent third-party mediator channels a discussion between the parties, which can be extremely useful in helping them to understand the other’s perspectives. If parties reach agree - ment at mediation, they would be encouraged to instruct their own solicitors to prepare a minute of agreement on their behalf, reflecting the terms agreed. Arbitration This is a voluntary process where both parties have legal representation, but they appoint a private judge, known as an arbitrator, who is a specialist-trained family lawyer affiliated with the Family Law Arbitration Group Scotland (FLAGS),
to adjudicate upon their case. Both parties will put their arguments to the arbitrator, who will make a decision that is legally binding on both parties. Collaborative law This is a process whereby both parties appoint a solicitor who is collaboratively trained. The parties and their respective solicitors have a series of non-adversarial, roundtable meetings to discuss settlement. At the outset of the case, all parties contract to resolve all issues without resorting to court, so as to ensure all are fully engaged with the process. ADR Methods Mandated by Court Parties cannot be compelled to engage in ADR prior to raising a court action. However, in court actions involving a child, a sheriff or judge may, at any stage, refer the action to mediation – although compliance is not compulsory. Status of Agreement Reached via a Non- Court Process If agreement is reached at mediation or using the collaborative process, the parties will be encouraged to instruct their solicitor to embody the terms of settlement into a minute of agree - ment, which is a legally binding contact that, once registered, has the effect of a court order. In arbitration, any decision of the arbitrator is legally binding on the parties. Requirements Imposed by Statute ADR is a voluntary process in Scotland. Parties cannot be compelled to engage in it. 3.5 Media Access and Transparency Media and Press Reporting The principle of open justice is enshrined in Scots law and, other than in specific and lim - ited circumstances, the media will be allowed
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