HM Insights

After the vote – in any separation, collaboration can be the key to good relations

I wasn't sure what I hoped to learn by watching the first television debate between Alex Salmond and Alistair Darling. As the programme wore on and the tone of both participants became more strident, I recognised an undeniable parallel between the work that family lawyers do on a day-to-day basis and the situation that faces the country.

In the event of a yes vote on 18 September, I understand that the respective governments have agreed that there will be a period when negotiations will take place between the two governments about important matters relating to the separation, such as currency, membership of the euro, defence and welfare.

Once agreement has been reached in relation to all of these issues, Scotland will become an independent country and the divorce can go ahead.

There is a remarkable similarity in this process to what happens when married (or cohabiting) people separate. It is very rare for people to divorce immediately. What they hope to do is identify the important matters which may relate to the welfare of their children and their financial position and, if agreement can be reached, enter into a written contract and thereafter, perhaps after a year or two years, the divorce itself can proceed. 

While, on the face of it, all this sounds quite straight forward, the difficulty lies in the nature of the negotiation. As I watched the TV debate between the two politicians become a battle ground, I realised that the same situation was true in the national sense.

If the country does vote yes, I hope we are not faced with 18 months of acrimony and argument where the Scottish and UK governments cannot agree on anything. I hope they will be able to sit down round a table and sort things out. The last thing we would want is the two countries falling out and having difficulty communicating in the future.

The same applies to couples when they separate. It is understandable that the initial reaction to a separation is one of anxiety and that anxiety may manifest itself in dispute, conflict and argument. If these emotional situations are not handled properly in the first instance, then the chance of any positive relations in the future diminishes. If the couple have children then there will clearly have to be a relationship of some sort in the future. Hopefully both parents can be present at sports day, graduations and marriages. It follows therefore that the process that is used when people separate should be one that fosters a future relationship and tries to reduce conflict to a minimum.

Litigation is not always the answer. All of this is evidence as to why couples should use the collaborative process when they separate. If they go down this route, there is an undertaking to work together for the good of the family. There is an agreement not to go to vourt. There is the promise of transparency and there is an understanding that if other professionals are required to help smooth the process, they will be involved on a supportive basis. Significantly both parties are encouraged to look at their own and the other person's interest and any resultant agreement should attempt to meet these interests, if that is at all possible.

The same could be said for Scotland. If the countries do agree to separate, then let's try and ensure that negotiations over the next 18 months do not descend into an endless series of arguments which may have the effect of harming the two countries' relationship with each other in the future. If the event of a yes vote, the two countries should work on a collaborative basis with a view to maintaining good relations in the future.

Those conducting those negotiations could learn a lot from the collaborative process in family law.