There are a number of processes which clients can use in Scotland to deal with their separation and divorce. An explanation of the options available are set out below.
Traditional negotiation is the most common form of dispute resolution in divorce cases. This can involve joint meetings between parties and their respective solicitors, as well as the exchange of correspondence. This is all undertaken with a view to resolving the dispute as efficiently as possible. As with other methods of alternative dispute resolution, negotiation allows parties to maintain an element of control over the separation process, rather than leaving this to a judge who does not know the parties, nor indeed their children.
It is a commonly held view that divorce lawyers spend most of their time in court, fighting battles at significant expense to their clients. Whilst in certain circumstances it is necessary to litigate, if parties can resolve matters outwith the court process, this is encouraged. Litigation is generally seen as the last resort.
Parties are often referred to mediation as part of the separation process, particularly where there are child related issues. If communication with the other party has deteriorated, mediation provides a forum in which concerns can be raised in the presence of a neutral third party. The process is completely confidential. Mediation can be carried out by an accredited lawyer mediator or a non lawyer mediator.
The Collaborative process can also be used to resolve matters arising from the breakdown in a relationship. This concept was imported from the USA. The clients and their solicitors sign up to an agreement at the outset in which they undertake to be open, honest and make full disclosure. They also agree not to litigate with those solicitors. In the event that the process is unsuccessful, the clients would require to instruct another solicitor to litigate on their behalf. Only those solicitors who are Collaboratively trained can participate in this process.
Arbitration is another method by which parties can resolve disputes that arise when a relationship breaks down. Parties can appoint a family law arbitrator (essentially a private judge) who will resolve their dispute. They can arrange a mutually convenient time and place for arbitration to take place. The process is also confidential, and is generally quicker and more cost effective than the court process. The decision which is made by the arbitrator is legally binding on the parties.
The family law team at Brodies is able to provide expert advice on all aspects of separation and divorce. We have a number of family law mediators, arbitrators and Collaboratively trained solicitors who can assist you.