Options for Dispute Resolution

When a marriage or civil partnership breaks down, there will inevitably be consequences, and many practical issues will need resolved. There will be various financial issues to be determined, and if there are children of the family, arrangements will need to be put in place for them. There are choices about which legal process is used to address the issues which need to be sorted out. The options are collaborative family law, negotiation, litigation, mediation or arbitration. The spectrum from mediation to litigation reflects the degree to which a couple need to hand over responsibility for decision-making to someone else or need to use a more formal process of law for protection or to force disclosure of information. With the first four options, once matters have been resolved, a Separation Agreement can be drawn up, reflecting settlement terms. The Agreement, once signed, acts as a binding contract.

Collaborative Law

This is a new form of dispute resolution, originating in America. Parties must both instruct Solicitors who have undergone collaborative law training. Parties and their Solicitors sign a participation agreement at the beginning. In so doing, they undertake that the Solicitors involved in the collaborative process will not raise Court proceedings, and make a commitment to approach matters on a “solution seeking” basis personal to them. Progress is made through a series of joint meetings attended by both parties and their Solicitors. The Solicitor make a record of matters covered at the meetings, and these are circulated. Parties must be committed to making full disclosure. This method has the benefit of making parties feel that they are very involved in the negotiation. The use of joint meetings means that each party is aware of the other’s position and its strengths and weaknesses. The collaborative process provides a useful transition for those who are committed to agreeing a settlement but who are not in a position where they can agree it themselves.

Given that there can be no inappropriate threat of litigation and there is a commitment to full disclosure of information, the climate is very much geared to solution-seeking. However, if no solution emerges and a Court action requires to be raised, the parties would need to start again with new Solicitors.

Two of our Partners, Stuart Hunter and Ruth Croman are qualified to undertake collaborative law.

For more information on Collaborative Law, please visit www.scottish-collaborativelawyers.com.

Negotiation

This method allows parties to determine for themselves, with the help of their Solicitors, the best solution. The process involves a mutual exchange of information, with a view to finding terms acceptable to both parties.  A key distinction between collaborative family law and negotiation is that if matters cannot be resolved on an agreed term basis, then the lawyers who have worked on a negotiation basis can take matters to litigation.

Sometimes joint meetings are used in this process. If one or both of the parties feel too hurt or nervous of the other, they need not sit in the same room as their partner. However, misunderstandings can happen inadvertently and if agreement cannot be reached then litigation might still be necessary.

Litigation

When parties cannot reach agreement either between themselves or with the help of  their Solicitors, they can ask the Court to decide matters. This method of dispute resolution is likely to be the most expensive, but in some cases will be the only viable option. Generally, most cases will settle before the final hearing, known as a “Proof” (where the Court will hear evidence and  make its decision).

There are fairly complex rules in force between countries which are used to determine which Court has jurisdiction (authority to hear the case). Once it has been established that the Scottish Courts have jurisdiction, actions of divorce can be raised in either the Court of Session in Edinburgh or in a local Sheriff Court. The Court of Session is generally chosen where there are particularly complex or unusual issues to be decided, for example in relation to finances. Only Advocates or Solicitor-Advocates can appear in the Court of Session, and this will have a bearing on overall costs. Your Solicitor will instruct the Advocate or Solicitor-Advocate, and will continue to be your main point of contact throughout.

A Court action begins by submitting a document called an Initial Writ in the Sheriff Court or a Summons in the Court of Session. These documents ask the Court to make orders, for example, for divorce, for financial orders or protective orders. They set out the facts outlining the background to the requests for orders, and the legal arguments backing up the requests. Once the action has begun, the Court issues a timetable, for the lodging of Defences and Adjustments to the Court documents. The whole process from start to finish can take between 9 and 12 months in the Sheriff Court and between 12 and 18 months in the Court of Session. In some cases it can take longer, depending on the complexity of the case, and the availability of court dates for hearings.

Litigation is advantageous in situations where there is a history of violence or dishonesty, or there is simply no way forward using any of the other dispute resolution options. Court remedies are available, and a decision will be made, concluding matters. However, the Court process is based on an adversarial system which polarises viewpoints and does not encourage flexible or innovative outcomes. Negotiations often continue in parallel and so the expense of two processes is incurred.

Mediation

This is a voluntary process where the parties, with the assistance of a neutral mediator, try to reach agreement on the issues in dispute. It is a less formal process than Court, and is therefore likely to be less stressful for parties. It is also generally quicker, and less expensive. It is usual for parties to share the costs of the mediator. Sessions usually last about 90 minutes, and three or four sessions will normally be sufficient.

Both Parties must be willing to embark on the mediation process and attend the sessions. The mediator tries to resolve the issues in dispute, but does not give legal advice. If agreement is reached, the parties’ own Solicitors will draw up an Agreement.

Two organisations provide mediation services in Scotland. The first is Family Mediation Scotland (FMS). This is a publicly funded organisation. There is often either no charge or only a nominal fee, but donations are encouraged. The mediators are professionally qualified. FMS has a considerable waiting list. FMS mediators are particularly good at dealing with issues involving children. Not all FMS mediators are trained in all-issues mediation (AIM), and so FMS may not be appropriate in cases with complex financial issues.

Comprehensive Accredited Lawyer Mediators (CALM) also provides mediation. CALM mediators are qualified Solicitors specially trained to deal with both financial and child-related issues. CALM is not publicly funded and the costs are shared by the parties in whatever proportion they agree. The waiting list for CALM mediation is shorter than that for FMS (in Tayside there is often no waiting list).

Mediation allows parties direct control over the decision-making and enables better lines of communication to be established in the re-ordered family. However, mediation is unlikely to be successful if parties are not committed to making plans for a separated future, or conceal information or behave aggressively.

Arbitration

This provides a structure for assembling the relevant details and allowing the information and possibilities to be explored in an investigative way. The arbiter then makes a decision in order to resolve matters.

The exchange of information and initial exploration of options is managed by the arbiter as a neutral third party, and who will then make a decision.

However, if one party were very determined to be obstructive, this would hamper the process as there is no mechanism for forced disclosure.

In our experience, arbitration would only be suitable for a very limited number of cases.

Let us know if there is a particular option which you feel might work best in your situation and we can provide you with further information.