Stop, collaborate and listen

In family disputes, collaboration is a sensible approach when it comes to dealing with finances, care arrangements for children and reducing trauma following a separation.

Court should almost always be a means of last resort. It is a form of dispute resolution to be used where all other remedies have failed. The reasons why it should be used as a last resort in family cases are extensive. It can be expensive, stressful, creates trauma for both parties and their children, is time-consuming, increases animosity and ultimately results in a third-party Judge or Sheriff making a decision for you which is not within your control. It makes any dispute a competition between both parties, with the aim to be to identify a winner or a loser.

When it comes to dealing with separation or disputes involving a child, inevitably this is not a situation where there would be a winner or loser as the circumstances are far more complex than that. There is the risk that decisions made by a Court are not entirely satisfactory to either party or to a child involved in the dispute. Court proceedings can cause stress not only to both parties but also to any children involved.

Collaboration is an alternative form of dispute resolution away from the Court process. It has been used in family law cases increasingly in recent years and its benefits are becoming more widely recognised as public awareness has developed. Collaboration can be used to resolve a variety of different family law issues, not only related to the financial aspects of separation but also in helping parents address how best they wish to co-parent their children following their separation or when they begin to live in separate households.

How does the collaborative process work?

Unlike the more traditional method of negotiation in which written correspondence is sent back and forth between solicitors until agreement can be reached, collaboration allows parties to discuss the circumstances of the case around the table fully, via a series of joint meetings attended by both parties and their solicitors. These are known as ‘four-way meetings’. Only solicitors who have undertaken specialised training in the collaborative process are able to offer the service.

All negotiations which are part of the collaborative process take place at the four-way joint meetings. Importantly, there is no negotiation between solicitors away from the joint meetings. In some circumstances, it may also be appropriate to operate the joint meetings virtually. This was common during the Covid-19 pandemic, but can also be helpful if geography is a factor in personal presence at a joint meeting.

In order for collaboration to work successfully, both parties should have a genuine desire to reach an agreement that is fair to the whole family, and, where there are children, centred on meeting the best interests and needs of their children. There must be transparency in terms of the financial aspects of the separation and willingness to disclose relevant information. Importantly, parties and their solicitors should commit to resolving matters without threatening or resorting to raising Court proceedings. If the process is ultimately unsuccessful, parties must engage new solicitors.  This takes away the ability to use the threat of court as a means to force agreement.

Both parties and their solicitors sign up to a Participation Agreement at the outset of the process. This outlines the key fundamental principles that must be followed to ensure that the collaborative process works successfully.

A full list of Collaborative Practitioners in Scotland can be found at www.consensus-scotland.com.

What are the key benefits to using Collaborative Practice?

There is no definitive list of long term benefits, although a brief summary of those are below and can be found at https://www.consensus-scotland.com/how-does-it-work

1               Less trauma to you and your children

By using collaboration, this helps parents improve and maintain respectful communication with one another to ensure that they can successfully co-parent from separate homes. This helps avoid situations where children are exposed to direct or indirect consequences of parental disputes. A separation or divorce is a life-changing event which can often be traumatic. The extent of trauma experienced by separation is, however, more manageable if both parties recognise the potential impacts and are willing to work together to minimise any harmful consequences. Significant research has shown that separation and divorce between parents can be regarded as an ‘Adverse Childhood Experience’. Adverse childhood experiences can have lifelong negative impact on a child’s life. Further information about the impacts of trauma on a child as part of a separation between parents can be found on the NHS Scotland website: https://www.healthscotland.scot/population-groups/children/adverse-childhood-experiences-aces/overview-of-aces

As distinct from Court, in the collaborative process there is no need to go through a stressful Court process with a final Proof Hearing (civil evidential trial) to give evidence and call witnesses in support of your case. A protracted Court action can often take at least a year, but often longer before a final decision is made. That is potentially months or years of stress and uncertainty while the dispute is ongoing. This in turn creates a level of stress/trauma on a day to day basis that can often detrimentally impact on an individual’s mental wellbeing.

2               Involvement of other experts

Other professionals can become part of the Collaborative process as and when required. Other experts can include:

• Financial Neutrals

Financial Neutrals may include Accountants or Financial Planners. Financial Specialists can provide vital short and long-term financial planning for individuals in a separation.  They can look at tax matters, business assets, retirement forecasting or income/expenditure scheduling by providing options of possible outcomes in different scenarios.

• Family Consultants

Family Consultants can provide support to individuals who are struggling to come to terms with a separation in order to help them participate in the collaborative process and meetings in an emotionally prepared and rational state. This helps minimise the risk of trauma or distress as part of a separation and divorce process.

• 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.

3               Minimised cost and expense

With all cases, the costs will vary depending on the circumstances and complexity of the case. However, there are no Court fees involved and unlike the traditional adversarial approach to negotiation there is a common aim to achieve a fair and child focused outcome for both parties and their children. In turn, this often helps both parties work together to ensure that the process is resolved as cost efficiently as possible.

4               Control over decision-making, certainty and creative solutions

Although during the Court process the law will likely be referred to for identifying what a person’s legal rights are in terms of the financial aspects of a separation, or identifying what parental responsibilities are regarding children, the collaborative process allows separating couples to customise the terms of any potential agreement to suit their needs and those of their children. They are not shoehorned into a decision which is imposed on them by a Court or a Judge who may have limited understanding of the circumstances or needs of the family.

5               A timetable determined by you and not imposed by a Court

With collaboration, parties are not tied to a definitive Court timetable. This allows the collaborative process to progress significantly quicker than the more traditional routes of negotiation or litigation. The volume of issues that can be covered within a single collaborative meeting is often not dissimilar to several months of correspondence being exchanged between solicitors. Similarly, if either party needs more time to consider and process certain aspects of the separation, the collaborative process allows for that. Conversely, it is not uncommon for cases in Court to take at least a year, if not longer before a final determination is made.

6              Maintaining more respectful and amicable relationships with a former partner

In some situations separating couples may be less inclined to stay in regular contact with a former partner. However, where there are young children involved, maintaining an amicable relationship with a former partner or spouse is so important in ensuring the best possible outcomes in the long term for their children. The collaborative process allows separating couples to identify and develop effective ways of maintaining communication with one another in a civil way. This helps achieve resolution as part of the collaborative process, but also assists families alleviate the likelihood of future stress and traumatic situations arising in the future.

Conclusion

Collaboration is not suitable for all cases. Cases involving any form of abuse or history of abuse would not be suitable for Collaborative Practice. Similarly, if one or other party is not prepared to engage in the process honestly and transparently, there is a risk that the process will ultimately fail. In the event that the collaborative process was to fail, or if either party threatened the other with Court proceedings, then the professionals involved in the process would need to withdraw from acting. Collaboratively trained family lawyers are trained to identify cases which are suitable for the process.

At Harper Macleod we have several family law solicitors in addition to myself who are trained in Collaborative Practice and who are also accredited as Family Law Specialists by the Law Society of Scotland: Amanda Masson, Karen Gibbons, Jenny Smith, Alexis Harper and Jane Blackwood.