Official data has demonstrated a steady increase in divorce rates between 2017 and 2022. Civil justice statistics published by the Scottish Government shows that in 2017-18 the number of divorces was 6,869, in 2018-19, 7,379, in 2019-20, 7,883 and 2021-22, 8,249. The 45% surge in the 2021-22 period is likely a consequence of the family court backlog due to the Covid 19 pandemic, however, the overall trend is an upwards one.

For separating couples, financial and childcare arrangements often require to be considered. Decisions such as these can be difficult to make when emotions are running high, and individuals often do not have a clear understanding of their rights and responsibilities. Family lawyers can offer practical advice and guidance on managing these issues. In particular, they can explain the various options of dispute resolution available to assist in resolving matters.

Family mediation

Family mediation is a process which allows both parties to converse with each other with the support and guidance of an independent and impartial mediator. The mediator is a family law specialist whose role is to assist the parties in attempting to reach agreement on issues which may include financial and childcare arrangements. Both parties require to agree to take part and to maintain a respectful and focused dialogue throughout. Mediation aims to take the heat out of discussions, and to encourage amicable agreement and respectful relationships going forward.

The cost of mediation can be considerably less than the sums incurred by both parties in a defended court action. Both parties are encouraged to seek the advice of their own lawyer following mediation sessions. If consensus is reached on the issues in dispute, then a legally binding agreement can be prepared.

Recent case law considering mediation

Mediation has been described as a "broad and potentially very useful power for resolving not only disputes but also doubts and difficulties where there is no dispute" (Adult Incapacity (Green, 2003)). Within the Scottish Court system, Sheriffs have the power to refer parties to mediation once proceedings have commenced. The case of ZR v SPR [2021] CSOH 69, which concerned contact arrangements between a father and the parties' children, is an example of mediation working successfully. In this case the parties took part in mediation following their separation and an arrangement pertaining to contact was successfully agreed. However, mediation is not always successful.

This can be contrasted with the case of PD v SS [2024] SC DUN 23, in which mediation was ineffective. The role of a mediator is to facilitate communication between the parties, however if there are communication issues then this process is unlikely to be effective. In this case communication issues between the parties were highlighted by the court. The judgement set out, "Communication with SS had always been difficult. His texts were often ignored or answered after having to chase SS for a response. He suggested family mediation on around October 2022 but that was unsuccessful."

Collaborative practice

Collaborative practice originated in North America in the early 2000s and is a formal process where both parties and their solicitors acknowledge each other's interests and try to reach an equitable agreement on issues arising from the parties' separation. Other specialists such as financial advisers, accountants or counsellors can also be involved in the process, making it unique to each situation. A series of joint meetings are organised after the parties sign up to a 'participation agreement', ensuring the principles of respect, co-operation and transparency are adhered to throughout the process.

To incentivise agreement through the collaborative process and remove the threat of litigation, the parties and their collaborative solicitors sign a contract stating that neither party can raise court action using the family lawyer with whom they undertake the collaborative process.

The benefits of and suitability for collaborative practice

The benefit of collaborative practice is that parties are advised and guided throughout the process by family lawyers who have undertaken additional training. The process is not adversarial nor driven by a timetable.

Collaborative practice may not be suitable where there is a significant imbalance of power or where there has been domestic abuse within the relationship. Furthermore, if one party is unable or unwilling to seek legal representation, then the process will not work. Family law solicitors will also be able to identify cases where an order of court appears to be necessary, which would mean that the collaborative process cannot be utilised.

Arbitration

If a dispute cannot be resolved through mediation or collaborative practice, then arbitration may be considered as an alternative to court action. The statutory framework for arbitration in Scotland is set out in the Arbitration (Scotland) Act 2010.

Arbitration involves an independent arbitrator, effectively a private judge, adjudicating a dispute and reaching a decision which is legally binding on both parties. Each party is usually represented by a solicitor who will advance their client’s case in disputes which can involve financial and childcare matters. Unlike court, however, arbitration cannot be used to make any awards in relation to status, including paternity and non-parentage.

To arbitrate or litigate?

The general principles of the 2010 Act ensure fairness and impartiality and provide freedom to parties in agreeing how to resolve disputes. The Act also states that the court should not intervene in arbitration except as provided for in the Act, and parties cannot rely on arbitration and legal proceedings concurrently. If court action has already commenced, then either party must apply to the court to sist proceedings and convert to arbitration instead. The court will not always allow this, however. Sheriff Stirling in C v M 2021 S.L.T. (Sh Ct) 319, refused the pursuer's motion to sist for arbitration stating that the actions of the pursuer "indicated a desire to have the dispute resolved by legal proceedings rather than by arbitration".

The benefits of arbitration include that it is generally faster and cheaper than court action, and parties have more control over the process. Parties can select an experienced family lawyer to arbitrate their case. Arbitration is also completely confidential, unlike some court proceedings which can be open to the public, so can add privacy and discretion to matters.

A more individualised separation process

Alternative methods of dispute resolution can provide more control to parties than might be the case with litigation and generally promote an ethos of maintaining a respectful relationship with one another.

Brodies have accredited family lawyers who are trained mediators, arbitrators and collaborative lawyers, and who can provide individualised advice tailored to your needs and circumstances. Please get in touch with us to discuss further.

Contributor

Matthew Donn

Trainee