Divorce and separation have a reputation for being messy. There are, however, ways to deal with the difficult process of separating from a spouse or partner whilst remaining civil. This can be particularly important when there are children involved. For those hoping to avoid acrimony, the answer may be to use the collaborative approach.

What is collaborative family law?

Collaborative family law was developed in the USA. The first Scottish Collaborators were trained in 2005. The process allows separating couples to negotiate settlement terms relating to both the child and financial matters arising from their separation. The biggest difference between collaboration and the more traditional means of negotiation is that all negotiations take place at a series of fourway meetings at which both collaborative lawyers and their clients are present. The process is therefore entirely transparent. At the beginning of the process the clients and solicitors all sign up to a participation agreement which promotes open and honest discussion. Fundamentally, the Agreement also states that neither solicitor will be able to litigate on behalf of their client (with the exception of processing an uncontested divorce if agreement on all other matters is reached) thus removing the temptation to say "see you in court" if negotiations become tricky. If an agreed settlement cannot be reached, the collaborative process ends and both clients must find new legal representation.

The solicitors who were trained in collaborative process quickly realised that holding a practicing certificate from the Law Society of Scotland entitling them to practise in family law does not mean that they were the best person to advise clients on all aspects of their separation. Interdisciplinary collaborative practice was born.

Who is involved in the collaborative process?

Those clients who collaborate can expect to be given the option to involve other collaboratively trained professionals to bring value to their case. Those fourway meetings can become fiveways or even sixways. Financial advisors can be brought in to help the couple understand what various ways of arranging dividing their wealth and income can mean for them post separation. This can include showing the couple what their lifestyle will look like in the short, medium and longer term to allow them to decide how to best structure the deal between them.

There is no denying that separation is one of the most stressful things any individual can go through. The collaborative process can also involve mental health practitioners where needed. This allows clients to access emotional support prior to participating in meetings with lawyers and financial advisors. The mental health practitioner can work with one or both clients independently and can even attend at the meetings if needed.

Benefits of collaboration

Ultimately, all of this tends to lead to a much healthier way to negotiate. Discussions remain respectful and focused. Creative ideas for resolution can be canvassed to try and reach agreement where a resolution looks unlikely. One of the main benefits of collaborative practice is that clients usually manage to retain some form of reasonable relationship with another. The polarisation which often sets in during a litigated case simply does not occur, as clients continually speak to each other face to face during the process. This can prove to be invaluable when clients require to continue to co-parent children. It has been known for clients to get along so well during collaborative meetings that they decide to reconcile. That is the exception, not the rule though! Meetings can be intense and are often emotional. For most clients who choose to collaborate, being in a position to make decisions that will shape their own future and the lives of their children makes any short-term discomfort worthwhile.

Brodies has collaboratively trained solicitors based in each of our offices. If you would like to find out more about the process and whether it could benefit you, please do not hesitate to contact us.


Donna McKay

Legal Director