You have separated from your spouse/partner. There are some things that are agreed, but others remain in dispute. You recognise that you are not going to be able to sort things out yourselves. You understand that although neither of you want a fight it is not possible for you both to consult the same solicitor. That would be a conflict-of-interest you would not feel comfortable with the idea anyway.
The obvious next step is to consult a solicitor. It makes sense to consult a family lawyer who specialises in separation and divorce.
You have not separated before so you do not really know what to expect. You do anticipate the involvement of the courts but you do not know to what extent.
The other relevant point is that you have separated after the end of March 2020 and during the time of the Pandemic.
You google ‘ I need a good family lawyer’ , pick one from the myriad of websites and a zoom type meeting is arranged.
During the course of that first meeting you will be asked to provide a lot of personal information, to describe the history and there will be a discussion about fees.
The onus is on the family lawyer to explain the procedure to you. There is, however, not just one procedure. There are a number of different ways to try to resolve any disputes between yourself and the other party. The lawyer is under an obligation to make you aware of all the possibilities. This is a really important part of your case because the process you decide to use will affect the time it takes to resolve the case, the cost of the case and very often the relationship between you and your spouse/partner going forward. ( you may say ‘what relationship’ I don’t want anything to do with him/her but if you have children there will be an ongoing relationship albeit a very different one).
Different processes suit different clients. But you have to be aware there are alternative ways of managing your case.
Actually that’s what ADR stands for. Alternative Dispute Resolution. Lawyers have a professional duty to advise you of the alternatives.
What you really want though is for the ‘A’ to stand for appropriate. What is the most appropriate process for your case?
The choices are;
The focus here will be on Collaboration and why, during these unusual and difficult times, it is the best process for many separating couples.
But before that discussion some comments about the other processes.
Despite what is mentioned above in many cases the family lawyer you consult will either not tell you that there are different processes or will provide little detail.
This is because there is a default process which is used by family lawyers in over 90% of cases.
The lawyer will take your instructions in relation to reaching a written agreement. There will be a negotiation with the solicitor appointed by your former other half, which will be conducted by email. If the negotiation is successful a written contract(Minute of Agreement)will be entered into. If the negotiation is not successful your lawyer will advise you to take the case to court (litigate)
Rather than litigate it might be suggested that your case goes to Arbitration. There are similarities to litigation insomuch as you are asking a third party ( in litigation the Sheriff; In Arbitration the Arbiter) to make a decision in your case. The hearing is in private before a specialist arbiter and the rules and procedures are less onerous. To date there have been very few family law arbitrations in Scotland although the process is used frequently and successfully In building disputes.
You would have thought that Mediation would be an ideal process for resolving family law disputes. A trained neutral third party helps the couple reach their own agreement in relation to the outstanding matters. The mediator is a facilitator who creates an environment where the parties can speak to each other about the issues that face them. One possible reason for a relatively low take-up is that in most cases the parties will already have instructed their own solicitors and would prefer them to be more involved in the process. In more difficult cases one party may not want to be in the same room as the other party which obviously creates problems. Some mediators are Family lawyers while others come from a. social work background. Where there are children, it does seem to make sense that the parents should get together and come to their own decision about what is best for their children.
That is where Collaborative law comes in a way as clients who choose this process do have the opportunity to come to their own decisions rather than let a judge impose an outcome. Unlike family law mediation they have their appointed family lawyer there to help them come to that decision.
The Collaborative law Process has a lot to recommend it in the current Covid pandemic.
One of the basic principles of this form of dispute resolution is that at the beginning of the case both parties agree in writing that they do not wish the case to go to court. If an agreement cannot be reached then the clients would have to instruct different solicitors as the family lawyers who are representing their clients in the process are not permitted to act for the clients If the matter proceeds to court. This provides a large incentive for everybody involved to try and resolve matters.
Court cases have been delayed because of Covid in this process allows all the parties to meet by Zoom without the necessity of physical meetings or court attendance.
There are also other advantages that make a lot of sense in the current climate.
Covid has made life so much more difficult for children. They have not been able to go to school or meet with their friends. If you add in the trauma of their parents separating there is a lot of responsibility on the parents to try and ensure that the arrangements for the children work well and are in the children’s best interest.
It is accepted that the messages and communications to children from each parent should be the same. Children should know that their parents are thinking of them, making decisions for them and generally sorting things out and it makes it easier for the children if there is a joint message.
Some parents may understand this intuitively, but in other cases, it makes sense to seek Professional help (not legal) to decide what is best for the children.
The Collaborative process allows for this and Indeed one of its central planks is to Involve nonlegal specialists early in the process.
So if there were financial issues IFAs could be instructed. Family Law consultants (counsellors or psychologists) would be involved to assist with child based issues and forensic accountants for business valuations. In addition to their own specialities would all be collaboratively trained.
Because the idea is for the family lawyers and the nonlawyers to work together as a team to try and get the best results for both parties.
It is important to note that the clients would not have their own specialists. The experts would meet with the clients and report back to the group.
Progress is made during meetings, which at present would be online, with a focus on transparency.
The idea is to take the win/ lose mentality out of the divorce process and replace it with an agreement that works for both parties.
The whole process is a step up from the traditional negotiation/litigation paradigm and fits into the Covid environment as everything can be done online.
It is not for everybody. Traditional negotiation works well in straightforward low value cases.
Collaborative Law is probably on a par with or slightly more expensive than traditional negotiation, but far cheaper than litigation.
Covid presents enough challenges without the additional stress of an acrimonious divorce action. It makes sense to involve the right kind of expert to assist. Collaborative law lends itself to be conducted online.
Not all family lawyers are collaborative lawyers. In fact some family lawyers are of a more adversarial bent and baulk at the idea of agreeing not to litigate.
So be careful to pick a lawyer who is collaboratively trained and who will advise you of all the available options.