Ways of sorting things out
The ways in which decisions can be arrived at following family breakdown are varied. If it was a joint decision you might have discussed broadly how to take things forward. Even there, it is usually helpful and often necessary to have some more formal assistance to check and finalise matters. If it has not been a joint decision then it is likely to be necessary to have some assistance to plan things as constructively and fairly as possible. If your partner has been violent or dishonest then it is particularly important to have assistance in sorting things out. The most important thing is to be aware of the different ways things can be tackled and to decide what is appropriate for you.
The range of options goes from mediation through the collaborative process, negotiation and arbitration to litigation.
Mediation can help you identify a mutually acceptable formula for settlement by direct discussion with your partner with the assistance of an impartial third party. The mediator facilitates the process by providing a clear structure for discussions and skills to keep the conversation constructive. You and your partner must be willing to sit down together to have this assisted conversation. These sessions usually last about an hour and a half. Three or four sessions may be sufficient although more may be necessary. Once plans are made in mediation they can be put into binding form by your lawyer and your partner’s lawyer.
Mediators can be found through the Family Mediation Service which is a publicly funded organisation. Some family lawyers are trained as mediators. The association for lawyer mediators is called CALM. More information can be found on the Family Mediation through Relationships-Scotland.org.uk and CALM website.
The collaborative process is a fairly recent innovation to Europe. It enables you to have the support of your own advising lawyer through a structured series of meetings. It recognises the importance of the emotional transition and the impact it can have on decision making. You, your partner and the solicitors all agree to use a solution seeking approach. You have to agree to make full disclosure of information. Other professionals such as financial advisors can be involved in the Collaborative Process. Support can be given by ‘coaches’ who are counsellors with knowledge of the Collaborative Process. The Participation Agreement you sign at the beginning of the process underlines the importance of dealing with a separation in as constructive a way as possible to limit the impact on the children. It allows options to be explored with full information and legal advice in a joint problem solving exercise.
If matters cannot be resolved by negotiation then the collaborative lawyers cannot take matters forward by litigation. You would have to instruct a new firm of solicitors. It is more usual to reach an agreement. In that case the Collaborative lawyers draw up a Separation Agreement. Information about the collaborative process can be found in the Scottish Collaborative Family Law Group (SCFLG) website.
Negotiation again allows you to retain your own advising solicitors through a process of exchanging information and looking for terms which will be acceptable to both of you. There is no set structure for negotiation. Sometimes it can be very problem solving and co-operative. Sometimes it may feel more adversarial and seem to take a long time.
Occasionally the legal rules and emotional climate generate a big gap in expectation. This can create a need for a third party to make a decision. If that happens you can still avoid going to Court if you and your partner use a family law specialist as an arbiter. Family Law Specialists who are trained in arbitration have formed The Family Law Arbitration Group (Scotland) (FLAGS). A member of FLAGS could be appointed as arbitrator. If you were using the collaborative process and there was a particular matter you and your partner were not able to agree about you could also use a joint referral to arbitration to deal with that, without the need for a change in advising solicitors.
Litigation means having things sorted out in Court. It is the most formal decision making process. You and your partner each ask for the remedies you want and provide information and legal argument in support of that request. You challenge what the other person wants. The outcome is binding and enforceable.
Would you be able to sit in the same room as your partner and a neutral third party to discuss plans which would be workable for you, your partner and any children involved? If the answer is yes, mediation may be right, particularly if you and your partner have in the past been able to make joint decisions when things were more positive between you.
If the answer is no, would you be able to sit in the same room as your partner and both advising solicitors to consider plans which would be workable for you, your partner and any children involved? A positive response could mean that Collaborative Family Law may be right for you, particularly if despite any current difficulties, you and your partner have had a reasonably respectful relationship.
If not, can you discuss matters with your own solicitor and consider the plans that are best for you and let your lawyer see how much of that can be achieved with a lawyer doing the same for your partner? If so, negotiation may be right for you.
If not, would you both provide the financial details and other necessary information to a third party who is a specialist in family law, who would explore the possible ways forward then make a decision binding on both of you? If so, arbitration might be right.
If not, litigation is the remaining route. It would be the right process to use if there are complex legal issues or if your partner is abusive or dishonest about financial matters.