HM Insights

Collaborative law – dealing with separation differently

There is a misconception that getting divorced is an aggressive and bitter process requiring lengthy court action as the parties fight over finances, property and children. However, many couples now divorce amicably through more widely known processes such as negotiation and mediation. 

Collaborative Practice is a form of alternative dispute resolution developing in the UK in recent years. It is now commonly being used in family law cases. It is a relatively new approach to negotiating a separation agreement that brings with it a great deal of benefits. It aims to reach an agreement between spouses with minimal conflict and without going to court, and to foster a relationship between the parties going forward.

Family Collaboration Separation Divorce Scotland Agreement Lawyer Solicitor Mediation

How does collaboration work?

Communication between spouses during a divorce can be difficult. Stress levels are high and there is often a lot at stake. Collaboration allows separating couples to address the specific circumstances of their case through a series of round-table meetings attended by both parties and their solicitors.

These four-way meetings are carefully planned by the lawyers in advance, who identify key issues to be addressed at that meeting. The meetings are followed up by minutes being issued to both parties and an agenda being issued ahead of the next meeting. This allows critical concerns, such as arrangements about children and financial matters, to be prioritised and addressed at the outset. This reduces immediate concerns and stress.

All negotiations take place around the table involving all parties and their solicitors. No communication occurs in the background which avoids lengthy correspondence or misinterpretation.

The collaboration process offers the benefit of being an interdisciplinary practice where necessary. It is possible to involve third party intermediaries who are also collaborative professionals such as financial specialists, family consultants and child specialists. Third parties enter the process as a neutral and are involved to support both parties.

The Roles

  1. Solicitors
    The lawyers manage the process. The solicitors work as a team with the parties and professionals to assist in achieving an agreement. Outwith the four-way meetings, clients and their own solicitors can have two-way meetings to discuss matters.
  2. Financial specialists
    Financial specialists may include Accountants or Financial Planners. Financial specialists can provide vital short and long-term financial planning for individuals in a separation which can look at tax matters, business assets, retirement forecasting or income/expenditure scheduling by providing options of possible outcomes in different scenarios.
  3. Family consultants
    Family consultants can provide support to individuals who are struggling to come to terms with a separation in order to enable them to participate in the collaborative process and meetings in an emotionally prepared and rational state.
  4. Child specialists
    A child specialist is a mental health professional with specific training and experience in child development and family dynamics. The child specialist's role is to assist parents in identifying the short and long term needs of their children in a separation, essentially providing a voice for the children in the process.

The Participation Agreement

The key difference between collaboration and other forms of dispute resolution is the Participation Agreement. The Participation Agreement is a document that both spouses and their lawyers sign at the very outset. This commits everyone (including the lawyers) to act with respect, honesty and integrity throughout the process. Crucially, the participation agreement prevents the parties from instructing their lawyers to raise a court action. If one party feels that they wish to raise a court action against the other, both solicitors would withdraw from acting and the parties would need to instruct new solicitors. All participants therefore have an interest in the process being successful and reaching an agreement.

Benefits of Collaboration

Collaboration encourages parties to work together to find the best solution to the issues they face. It facilitates direct communication and allows spouses to better understand one another's points of view. Co-operation and communication can strengthen the relationship between separating couples going forward which long-term is of enormous benefit, particularly where there are children involved. There is also the advantage that decisions made will be made jointly by the parties and not simply imposed upon them by a court.

Collaboration has the benefit of being a flexible process; there can be as many or as few meetings as necessary. Furthermore, it can be cheaper and more efficient than court action. The discussions allow for creative solutions to problems that could not be reached through a court order or other forms of negotiation. Collaboration can be used in complex cases with as much success as simple ones.

Is Collaboration the right solution for you?

Clients will have to think carefully about whether collaboration is the best way for them to reach a settlement. If you are considering collaborating with your former partner, you should give real consideration to the long term benefits that achieving a positive outcome with your former partner would have on your children, as well as your finances.

In terms of whether the process itself will work for you, Consensus Collaboration Scotland lists several questions to ask yourself, including:

  • Do I want a civilised, respectful resolution of the issues arising from my separation?
  • Do I want to keep open the possibility of civil contact with my spouse/partner in the future?
  • Do I want to reach an outcome more specific and suitable to my personal family situation?

You should also think about whether your spouse would be willing to use collaboration. The process will only work if both sides are willing to co-operate and invest fully in the process.

Getting Started – get in touch

If collaboration is something you and your spouse may be interested in, at Harper Macleod we have five Collaboratively trained family lawyers in Scotland who can assist. Please get in touch with a member of our team and we'll be happy to help.

 

* This article was prepared with the assistance of Euan Bowie.