This week (24 - 28 November 2014) is National Family Dispute Resolution Week which was established to raise the profile of alternative options for separating couples.
Dispute resolution includes the following settlement-seeking processes - mediation, collaborative law and arbitration.
Alison McKee, Partner at Lindsays and Head of Family Law, said: “Most parents have good intentions and want to prioritise the well-being of their children and avoid conflict during separation. Therefore they would consider alternatives to resolving divorce through court battles and aggressive negotiation which has an incredibly damaging effect on the couple and their families.”
Mediation Usually, a single mediator acts for a couple. A mediator is impartial and does not act as a judge or seek to impose a decision. In Scotland, mediation is carried out by Relationship Scotland and also by CALM mediators who are trained lawyers and qualified mediators. Mediation allows a couple to resolve underlying difficulties which will hopefully lead to better communication and facilitate future decision making.
Collaboration Collaborative law is an approach where the two parties appoint their own lawyers and once a ‘Participation Agreement’ is signed, parties are committed to resolving matters collaboratively. Four-way meetings will take place to reach an agreement through open and honest discussions. The key is that all negotiation takes place in the presence of both parties, rather than solicitors exchanging information and negotiating without their clients’ presence.
Collaboration allows separating couples to retain control over the decision making process and the outcome.
There are many benefits to considering collaboration but most importantly it reduces hostility and encourages communication between the couple. The process focuses on the needs of the children and reduces the stress and cost of family breakdown. Another key point is that it is not driven by a timetable imposed by the court so it allows families to resolve issues in a tailored way, personal to their individual situation and priorities.
Most importantly, if discussions break down, the collaborative process ends and if one party goes to court, both lawyers have to stop acting and pass the case onto new solicitors. This provides an incentive to reach agreement for all involved. Other collaborative professionals such as family counsellors or financial advisers can be brought in to help as necessary.
There are several collaboratively trained lawyers at Lindsays and if you decide that this is an option you and your partner would like to consider, please contact us for advice.
Arbitration Arbitration is increasingly popular. An arbitrator makes a decision which is binding on all parties. It can be advantageous as it offers privacy, as the process is not public, and can be tailored to suit parties needs such as focusing on the determination of one fact.
If alternative dispute resolution is not appropriate, parties can move forward using negotiation either on an informal basis between themselves, or more formally using solicitors. If all else fails, a Sheriff or Judge will make a determination.
If you would like to consider an alternative route to separation, our family law team can offer advice to help you find the right option for you.
