Not everything ends up in court. There is more than one way to resolve disputes. Certainly, some methods may be more of a blunt instrument than others but if you know the options available then you are able to make an informed decision about which method might best suit your particular circumstances. In family disputes, it is likely there has to be an ongoing relationship of sorts with the other party, so how that relationship fairs through the dispute, really matters.
In this Insight, we look at the options available. In providing advice to any client, we are sense checking the different methods against the client’s particular circumstances to assist them choosing which route to take.
Litigation
While we are all experienced court practitioners here, litigating is without a doubt, the tool of last resort. Beyond the expense, you are taking a gamble that a judge or a sheriff, finds your argument more compelling than your opponent’s argument. Court action can be a lengthy, all consuming experience that will do irreparable damage to the relationship you have or will ever have with your opponent. By way of example, an action raised by one parent against the other to decide where and with whom a child should live, by its nature, pits one parent against the other. One party will be unsuccessful or is it actually both? It is questionable to call the other party the successful one if relations are destroyed in the process. You can see why we view it as the line of last resort.
There are situations where court action may be entirely appropriate. The court has a protective role to help those in need. This, for example, may apply to domestic abuse incidents where it becomes necessary to apply to the court for an interdict or exclusion order to protect an individual from the behaviour or threatened behaviour of another.
Conventional Negotiation via Solicitors
Solicitors are regularly instructed to ingather information, valuations, and other evidence to support a client’s position in negotiations. This may be in the context of negotiating a separation agreement regarding division of matrimonial property. The important word to note here is “position”. The solicitor will advise on what a client may be entitled to ask for or may achieve within the framework of the law. Correspondence will go back and forth between parties solicitors and eventually (hopefully) parties will reach an agreement.
Putting forward “positions” can lead to fractures in already fragile relationships. It takes enormous care and skill to ensure the language you use in your correspondence to the other solicitor will not inflame difficulties in a relationship. In a legal context using the words “entitled to” makes perfect sense to another lawyer but to an individual going through relationship breakdown, there is nothing more certain to stoke the ire. Parties lawyers are front and centre in this process providing advice and taking instructions. Some clients may prefer being one-step removed from dealing with their ex but others may feel less in control of their outcome. As solicitors our job is to make sure that you understand the process at all times and act in your best interests. It is important that you feel able to ask questions and ask for clarification if there is something you don’t understand. It is not the solicitor’s job to take decisions for you. Ultimately if an agreement is reached, you have resolved your dispute but it may not have been without feeling a little bewildered in the process.
What we are also seeing increasingly now are “Implementation Only” Agreements. Here, parties have ostensibly reached agreement between themselves and approach solicitors to draft the contract. In these situations, solicitors are generally not providing full and detailed advice. If the Agreement relates to division of matrimonial property, the solicitor will not have all of the information available to them to determine if the agreement reached reflects a fair and reasonable division of the matrimonial property in terms of the Family Law (Scotland) Act 1985. In these circumstances parties must understand there is an element of risk involved in the contract they are creating. It is very difficult to change your mind at a later stage as the Agreement is generally treated as a legally binding contract. If there has been the opportunity to take advice and you have opted not to or you have acknowledged the risk you are taking, then reversing your earlier position will be well-nigh impossible. So, while you may feel you are both in control of the decision making, you are doing so without the benefit of making fully informed choices in the same way as someone who has had detailed legal advice.
Arbitration
Here parties opt to have their dispute adjudicated on by a 3rd party arbitrator. The parties will with the assistance of their solicitors prepare a case, written or oral, to be put before an arbitrator. For family law disputes this is likely to be an experienced family law solicitor or advocate. He or she applies her experience and knowledge of the law to the disputed circumstances and provides a reasoned decision. Parties are bound by the decision and know at the outset that this is the purpose of the arbitration.
It may work well to answer very specific questions that have caused an impasse. For example if there is a dispute about the date of a couple’s separation, an arbitrator’s decision will assist the parties in obtaining the valuations of their assets for the date as determined by the arbitrator.
Collaborative Practice
A worry for any client is the threat of litigation. Although often said in haste and not in earnest, the words “See you in court” are very powerful if your world is falling apart. In collaborative practice, this threat is removed. Parties and their solicitors all sign a Participation Agreement in which an undertaking is given not to litigate. This immediate commitment places parties on a level playing field and gives them the confidence they need that each is prepared to negotiate an outcome.
The participation agreement drives the process. It makes it clear that both parties will make a full disclosure of all financial information and if valuations are needed, they will be instructed jointly. There is a clear statement of intention that the parties will look to achieve an outcome that is fair and focused on what works best for their family. This is not about taking a position or looking for what you may be entitled to. This is about what you want as an outcome for your family that you are comfortable with and can live with.
By its nature to achieve an outcome that is best for the family, it involves collaboration. Everyone works together through a series of round table meetings aiming to find solutions that suit all, not one or the other. Not being confined to a framework of what you might be entitled to under the Family Law (Scotland) Act 1985 makes for creative out of the box thinking that everyone contributes to, not just the lawyers. Being in a position to influence and shape the outcome you both want for your family can be satisfying for all involved.
Mediation
If ever there was a method of dispute resolution to put both parties in the driving seat and take control, it is mediation. The job of the mediator is to guide the parties in reaching their own decision. Parties are encouraged to try to see both points of view. In being able to appreciate where your partner may be coming from and exploring different options together to see what may or may not work for your family, then you are both fully contributing and participating in the process. Mediation is future focussed. You are both encouraged to look at the bigger picture.
Mediation may be used for all sorts of family disputes. There may be issues with care arrangements for children during holidays or when or if they should meet the new partner or which school they should attend. All Issue Mediation or CALM Mediators can also assist with financial issues such as division of matrimonial property or payment of maintenance. An accredited solicitor family mediator is able to provide information on the legal framework but their job is not to be the legal advisor in the process to either or both of you. They perform a very different role as mediator and you can instruct your own legal adviser. What you hope to achieve in mediation is a Mediation Summary or a Memorandum of Understanding which your solicitors then consider with you individually with a view to preparing a formal agreement.
Which One Is For Me?
In advising clients, we will provide some information on all options but we will gauge from our discussions with you which method may work best for you. While we are all experienced litigators and negotiators, we also have collaborative family lawyers and accredited family mediators. 0ur ethos is to use alternative dispute resolution methods wherever appropriate or at least apply the skills and philosophies we have learned in our daily practice.
Angela Wipat is Accredited by the Law Society of Scotland as a Specialist in Family Law and a Family Law Mediator. She is also a Collaborative Family Lawyer.
