Now more than ever family law practitioners are able to offer their clients a range of methods of resolving disputes. The majority of family disputes can be resolved without recourse to the courts, and most specialists practising in this area share the view that litigation should be a last resort for most of their clients.
Many family disputes continue to be resolved by traditional negotiation, with agents working towards reaching agreement through an exchange of correspondence on behalf of their clients and/or by holding meetings with solicitors and their clients present. In addition to the more traditional methods of dispute resolution, a growing number of family law practitioners are offering alternatives such as mediation, collaborative practice and arbitration. The launch of the new alternative dispute resolution option of arbitration by the Family Law Arbitration Group Scotland (FLAGS) signals a further expansion of the range of choices available to clients, with some firms now offering the full spectrum of ADR options.
In mediation, couples work together towards agreement with the assistance of a trained, impartial mediator. Since 6 April 2011 mediation has been compulsory in England before divorce proceedings can be raised (except in cases involving domestic violence or child protection issues), and whilst in Scotland there is no equivalent provision, it remains an option for couples looking to resolve matters. Many firms now offer the services of CALM (Comprehensive Accredited Lawyer Mediators), who can guide couples through the various options on offer towards a resolution. Clients can also use the services of non-lawyer family mediators.
Mediation can be particularly beneficial for couples trying to reach agreement over issues arising from shared parenting, since in contrast to the adversarial nature of litigation the emphasis is on working together to find solutions, which should help pave the way for better future relations. Following a successful mediation process, the clients are usually encouraged to instruct their own solicitors to prepare the relevant agreement.
Mediation allows separating couples to retain control over matters, and can be a cost-effective means of resolving disputes. Having said that, it requires cooperation and trust, and will not be suitable for all couples. At the risk of stating the obvious, mediation will not work unless both of the people involved are willing participants!
Collaborative practice has been a growth area for family practitioners over the last few years, and in certain areas of the country is fast becoming the preferred means of resolving matters arising from separation.
The process involves a series of private four-way meetings, attended by clients and their respective solicitors, aimed at reaching a mutually agreeable settlement. Where expert input is required, the clients jointly instruct professionals rather than each instructing their own. Clients sign a participation agreement at the outset of the process, limiting the collaborative lawyers’ representation to the collaborative family law process and precluding either of the solicitors or their firms from representing the clients in contested court proceedings.
The emphasis is on constructive, amicable resolution of issues, and the process will generally be more cost-effective than litigation. Whilst the requirement of a considerable degree of trust on both sides means that this will not suit every couple, for those who do use it successfully the longer term outlook can be much more positive than when matters have been litigated. The option to return to the collaborative process to address future issues, such as those arising on a material change of circumstances, is an added advantage.
It is anticipated that there will be a significant increase in the popularity of the collaborative option following the Consensus Collaboration Scotland international conference at the EICC on 1 and 2 June 2012. (www.scottish-collaborativelawyers.com/ecc/)
In family matters, arbitration is the only alternative to litigation that allows for a final, legally binding determination to be made by an impartial decision maker. Whilst it has long been used to resolve commercial and other disputes, the implementation of the Arbitration (Scotland) Act 2010 put in place a clear framework that enabled family disputes to be resolved in this way, too.
The founding principles of the Act are: (a) that the object of arbitration is to resolve disputes fairly, impartially and without unnecessary delay or expense; (b) that parties should be free to agree how to resolve disputes, subject only to such safeguards as are necessary in the public interest; and (c) that the court should not intervene in an arbitration except as provided by this Act.
The Family Law Arbitration Group Scotland has been guided by this statutory framework to tailor arbitration specifically towards family law disputes, and a set of rules specific to family cases has been prepared. It is anticipated that arbitration will most often be used to resolve disputes over property and money, rather than those relating to the welfare of children. Arbitration differs from litigation by affording parties the opportunity to choose their arbitrator and to have matters dealt with confidentially. Furthermore, with a more straightforward procedure than the litigation process, matters should be capable of a quicker and more efficient resolution.
These unique features will be particularly appealing to some separating couples, and with around 30 family law solicitors and advocates now qualified as arbitrators it will be very interesting to observe the development of this new area over the coming years.
Litigation should be a last resort for dispute resolution in this area. The broadening range of models on offer to family lawyers gives the client more choice in finding the right options, and should help to reduce the number of disputes brought before the courts.
In this issue
- Capacity and undue influence
- Tolent clauses in construction contracts
- Mending the safety net
- Keeping it in the family
- Speak with impact
- The complication of tax simplification
- Reading for pleasure
- Opinion column: SIHRG
- Book reviews
- Council profile
- President's column
- The price is right?
- Learning on the slate
- A better way to talk
- Plain sailing?
- Kilbrandon in the 21st century
- Who's who in banking and finance
- Corporate speak
- Here we go again...
- Deadlines in negotiations
- Scottish Solicitors' Discipline Tribunal
- Shuffling walnuts?
- A bold step forward
- Action to safeguard vulnerable clients
- Buildmark acceptance goes online
- Law reform roundup
- Escape from disaster?
- Ask Ash
- Update branches out
- Business checklist
- Work, the deciding factor