Most families know in their heads that disputes are best resolved constructively. But traditional legal approaches can add to the conflict, rather than resolve it. That’s because going to court is adversarial, at a time when what’s really needed is some bridge-building.
This all explains the growing use of alternative dispute resolution (ADR) methods in handling family law issues from divorce to contact with children (and other disputes too). These ADR methods include collaborative law, mediation and arbitration.
Each method can work especially well depending on the type of dispute or circumstances. Collaborative law is increasingly popular in divorce or the breakdown of civil partnerships or other relationships. It involves four-way meetings between the clients and their lawyers, and a shared commitment to avoid litigation.
This can be hard for clients at first, because it means they don’t have the ‘nuclear option’ of going to court if the negotiations get difficult. But, with the help of lawyers trained and experienced in this area, the conversations are likely to remain more focused on solutions and the future than on blame.
One benefit of collaborative law is the recognition that the law doesn’t have all the answers. Let’s take the example of divorce where one spouse thinks the other behaved badly and feels wronged.
In that situation, the law can provide the way forward on the financial settlement, but it won’t resolve the issues around hurt, blame or fault. Nor will it guarantee a constructive relationship between the former spouses who will now be co-parenting.
Collaborative lawyers can look for creative ways to address this – for example, bringing in life coaches or counsellors to discuss the relationship aspects or the emotional issues.
None of this wipes away the past, but it does help people move forward and build their future. That’s what family law is about. It doesn’t make great drama, but it does make for better family life.
‘Fault’ can affect residence and contact if there is a dispute
The behaviour of a spouse may also be taken into account in residence and contact disputes. However, bear in mind that:
- there’s a presumption in Scotland that children’s welfare is generally best served by having both parents involved in their life
- being a ‘bad’ spouse is not necessarily equated with being a ‘bad’ parent
- residence and contact disputes are a complex area, and depend on individual circumstances, so there are no hard and fast rules here. There is, however, universal agreement that residence and contact are best decided amicably, if possible, and certainly outside the courts.
