Good Divorce Week runs from 28 November to 2 December 2022. This is an annual initiative by Resolution, a community of professionals primarily based in England and Wales, committed to working with families to resolve issues in a constructive way. One focus of this year’s campaign is on raising awareness of the different processes families can use to resolve disputes away from Court.
It is important to acknowledge that divorce is rarely anything but hard for those going through it. In many situations, it can be completely life-altering. That being said, there is scope, with the right advice and support, to reduce conflict and minimise emotional damage arising from divorce. This can make all the difference in getting people to where they want to be: helping them effectively co-parent and otherwise moving on with their lives post-divorce.
There is no magic wand, of course. There are things to think about, however, that can make a real difference in making the road to divorce less confrontational, painful and expensive.
Self-care & wellbeing
Therapy can be invaluable when navigating the issues that arise through the divorce process. Having therapeutic support can help in staying focused on what is important. Without it, the emotional aspects of the divorce process can impact on decision making and judgment, which can often lead to delay and cost in reaching a resolution.
The right solicitor
Having a solicitor with sufficient experience and specialist knowledge is essential. It is vital that those going through a divorce trust their solicitor. What will also have a bearing on a client’s experience is feeling that they can be open and honest with their solicitor, as will having a solicitor who understands and cares about a client’s situation.
Choosing the right method of dispute resolution
The risks surrounding litigation are well known, particularly where children are involved. Being in court heightens the prospect of emotional damage and of fractured relationships. It will usually always increase cost, too.
There are other options. In Scotland, divorcing couples are able to enter into a contract (usually called a Minute of Agreement or a Separation Agreement) to regulate their agreed outcome. This will, importantly, discharge the right of either party to make a financial claim on divorce, effectively extinguishing the entitlement to ask the court for further financial orders. This option is chosen by most people seeking a divorce in Scotland, which is positive. However, what is often under-acknowledged is that, notwithstanding the choice to settle matters away from court, the road to resolution still remains fraught with tension and uncertainty, not to mention expense.
This could be, in many situations, avoided if more thought is given to the options available to resolve issues at the outset of a case. Those who wish to become divorced should be encouraged to consider all of the options and not, by default, accept solicitor-led negotiation as the best or only option to get them to where they want to be.
- Solicitor led negotiation:
This remains the most common choice of dispute resolution in a family law setting in Scotland. Solicitors exchange correspondence and negotiate a resolution on behalf of their client, which would then typically be captured in a Separation Agreement. Whilst this can often be effective, all too often the correspondence can become costly and positional, leading to parties becoming polarised from each other. This can be particularly problematic if parties are, in the background, co-parenting children. One’s choice of solicitor in this sphere can play an important role in ensuring that negotiation stays on track rather than undermined by unnecessarily combative correspondence. Negotiations need not purely be through written correspondence and often effective is the decision to have face-to-face negotiations through joint consultations etc.
Separated individuals appoint solicitors who are trained in Collaborative Practice and members of Consensus Scotland (consensus-scotland.com). The overall aim remains the same as more traditional solicitor led negotiation, namely the reaching of an agreement on all issues, so that a Separation Agreement can be signed. However the approach focuses on non-confrontational discussions through a series of meetings (rather than through the exchange of solicitor correspondence). There is also scope for the involvement of financial specialists and family consultants who are also trained in Collaborative Practice, who bring their own expertise and experience into the process as necessary. Significantly, the collaborative approach differs from conventional negotiation in that a contract is signed at the outset which will prevent the instruction of the solicitors involved to raise a court action, if the collaborative process fails. This option ought to, if successful, help minimise conflict in the separation, lessen stress and reduce emotional damage arising from divorce.
An independent mediator, often a solicitor accredited mediator, helps the participants directly through discussions to try to find common ground and to explore whether there is a solution or solutions which are satisfactory for both individuals. The process can in many cases be highly effective and there are considerable benefits, including being time-effective and relatively inexpensive. It can often avoid cases becoming ‘stuck’ or even de-railed by misunderstandings and poor communication. It gives parties control to make agreements about their situations directly with each other, with the help of the mediator. Agreements reached at mediation can then be taken to the parties’ individual solicitors to be formalised, if appropriate.
Where it is not possible to agree matters which are central to a situation and parties have a desire to avoid going to court (perhaps because of concern regarding delay or cost arising from litigation) arbitration can offer an alternative. Arbitrators in Scotland are accredited specialist family lawyers who have undergone appropriate training and are also members of the Family Law Arbitration Group Scotland. Arbitration can offer a quick resolution to disputes on a wide a spectrum of family law issues, under exception of divorce itself. An arbitrator’s decision has the same effect as a court decree, with limited grounds of appeal.
Choosing the right method to resolve issues can play a major part in an individual’s experience of the divorce process. Despite this, alternative methods of dispute resolution are often overlooked in favour of more traditional solicitor based negotiation, failing which court. Regrettably, this can see couples find themselves stuck in a cycle of lengthy and polarising (not to mention expensive) solicitor led correspondence in an attempt to reach a resolution.
Given the risks associated with a ‘bad divorce’, it is important that due thought is given to all the available options to resolve disputes.
Whilst it is rare that you will find many people willing to say that they had a ‘good’ divorce, it is definitely possible to have a divorce where those involved resolve what they need to with minimal conflict and emotional damage. The benefits of this cannot be underestimated, not only for the individuals involved but also their children.
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