There is a common misconception that by instructing a lawyer to deal with your divorce or separation you will automatically end up in a long, drawn out and expensive court battle. Most clients are pleased to hear that this is not the case for the vast majority of separating couples who resolve matters away from the court. Litigation should always be regarded as the last resort and most good family lawyers will advise against this given the uncertainly, risk and costs involved.
Our approach at Brodies is to do all we can to minimise conflict between separated couples with a view to reaching an amicable and pragmatic resolution to the matters arising from the breakdown in their relationship. We understand that clients will be concerned about costs, and this approach enables the process to be dealt with more cost effectively. Whilst there will be some expense in instructing a lawyer, if specialist family law advice is not obtained at the outset, the process could ultimately cost considerably more.
There are a number of processes which can be used in Scotland to deal with separation and divorce and these are set out below.
Negotiation
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.
Mediation
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.
Collaboration
The Collaborative process can also be used to resolve matters arising from the breakdown in a relationship. 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 other solicitors to litigate on their behalf. Only those solicitors who are Collaboratively trained can participate in this process.
Arbitration
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.
We will usually encourage clients to resolve matters using the methods outlined above with a view to reducing conflict and enabling a fair and workable solution to be found – this benefits all parties. It allows separated couples to keep some control of the process and increases the chances of a cooperative relationship being maintained, which is particularly important when there are children of the relationship. This also reduces legal costs and the stress involved in the process.
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 specialists who are accredited by the Law Society of Scotland, family law mediators, arbitrators and Collaboratively trained solicitors who can assist you.
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