HM Insights

Dealing with separation during the Covid-19 pandemic and lockdowns

There is a misconception that getting divorced or separating is an aggressive and bitter process requiring lengthy court proceedings. Many couples separate amicably through alternative methods dispute resolution. Collaboration is one method increasingly used in family law cases globally. The aim is to reach an agreement between couples with minimal conflict, without going to court and to foster a civil relationship between the parties going forward.

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How Does Collaboration Work?

Collaboration allows separating couples to discuss matters through a series of round-table meetings attended by both parties and their solicitors. These four-way meetings are carefully planned by the solicitors in advance, who identify the key issues to be addressed. The meetings are followed up by minutes (taken by one of the solicitors) which are issued, confirming the specific outcomes and action points. This removes uncertainties ahead of the meetings, reduces stress and provides a clear to do list after the meeting. All negotiations take place around the table involving all parties and their solicitors. No communication occurs in the background between solicitors. This assists in reducing legal expense, lengthy correspondence being sent back and forth or misinterpretation.

The collaboration process offers the benefit of being what we refer to as 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 where necessary 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.

  1. 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.

  1. 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.

  1. 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 identify 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 solicitors or neutrals) to act with respect, honesty, confidentiality 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.

What are the benefits of Collaboration?

Collaboration encourages parties to work together to find the best solution to the issues they face. It encourages direct communication and allows a better understanding of one another's points of view. Co-operation and communication can improve between separating couples 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. Collaboration can be used in complex cases with as much success as simple ones.

How does Collaboration work during lockdown?

The Coronavirus pandemic has presented barriers in allowing attendances in public places, meetings with their solicitors or even attendances at Court. Government restrictions and lockdowns do not necessarily need to prevent people being able to progress their separation amicably.

The Collaborative process enables individuals to continue with resolving the aspects of their separation using video conferencing platforms. This is possible through Zoom or Microsoft Teams for example. The use of video conferencing can offer a more comfortable environment for people to engage in constructive negotiations.

Is Collaboration the best option for me?

Individuals do need 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 provides several questions worth considering:

  • 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 former partner would be willing to use collaboration. The process will not work where one party is fearful of the other or there is a significant power balance.  The process will only work if both sides are willing to co-operate and invest fully in the process.

Get in touch

Our family law team is made up of experienced family law solicitors around the country.

Many of our team are trained in various methods of dispute resolution, including mediation and collaborative practice, and are Accredited by the Law Society of Scotland as specialists in their field. 

Useful links

Mediation and collaboration Advice

DIVORCE AND SEPARATION ADVICE

FAMILY LAW SERVICES