Most divorcing couples regard litigation as a last resort. The cost of raising a court action is one of the main reasons for this but couples are also aware that if the matter is taken to court relations between them are likely to deteriorate. Communication might become difficult and if there are children involved their welfare could suffer as a result.
Clients therefore look for other processes which will allow them to achieve a fair settlement and which will avoid the problems that are created by an adversarial system.
The difficult issue for many couples is not the divorce itself, but more trying to reach arrangements that are in the best interest of the children and agreeing to a financial settlement that works for both parties.
The default process used by family lawyers working in Scotland is to negotiate with their counterparts by email. If difficulties arise, face-to-face meetings ( or zoom meetings) can be arranged to iron out the details.
In other cases, there are referrals to Mediation, where the family lawyers continue acting for the clients and the clients attend a series of meetings where the neutral mediator helps the couple to reach their own agreement. If there is consensus the mediator summarises the terms of the agreement and the summary is sent to the family lawyers who draw up a formal contract.( Minute of Agreement)
Collaborative law is another option. In this scenario, clients have their own family lawyers who are trained in collaborative law and who represent them in a series of meetings. The clients undertake not to raise court proceedings. More accurately, the situation is that if the Collaborative process is not successful and it is likely that matters will have to be resolved by the court, the Collaborative lawyer will not represent the client in these proceedings and the client will have to instruct a different lawyer.
The whole idea is that both clients should buy into the principle that they’re going to try and resolve their differences in a respectful, non adversarial way. The philosophy behind the Collaborative process is quite different from the traditional dispute resolution processes. The suggestion is that both parties and their agents should work together and try to reach a settlement that benefits both the parties and their family. There is no reason why that approach would not work in many non Collaborative cases.
Another aspect of the collaborative process which distinguishes it from traditional models is the involvement of independent expert neutrals who form part of the team that is trying to achieve settlement.
The neutrals are Financial Specialists and Family Consultants. Before they can become involved in any live cases they require, as do the Collaborative Lawyers, to be trained in the Collaborative process.
The Financial Specialist is often involved from an early stage. Typically, in more conventional processes, financial advisers only become involved towards the end of the case but in Collaborative cases that IFA will meet with each of the parties at the beginning of the transaction with a view to assessing the financial situation, preparing a schedule of the matrimonial assets and generally discussing with the clients which financial outcomes might work, and which might not.
If there are issues relating to Pensions the IFA can obtain valuations and provide advice in relation to sharing. In situations where clients are concerned about their income position in the future the IFA can look at the cash flow situation and provide illustrations of possible outcomes. One striking element of the Collaborative process is that the professionals involved focus on their own areas of expertise.
The Collaborative lawyers are in charge of the process and the legal advice provided. The Family Law Consultants attend to issues surrounding the welfare of the children and the relationship between the parties. The Financial Specialists look at all the financial matters and provide the information that allows the lawyers and their clients to reach an agreement. The Collaborative process is still only utilised in a small number of cases. It is certainly not suitable for every couple, particularly if the relationship between the parties is poor.
It works well where the parties can communicate with each other and want to reach a fair resolution without an ongoing battle. There are lessons that general practice can learn from the Collaborative process. The idea of involving other professionals to help reach a satisfactory outcome makes sense. Lawyers have their own expertise, but are not necessarily the best people to advise on the nonlegal aspects relating to the welfare of children or provide advice in relation to specialist financial issues.
In general in cases involving financial assets where agreement cannot be reached it seems sensible to involve IFAs at an early stage. This helps ascertain the extent of the matrimonial assets, obtain valuations of the assets and suggest options as to how the assets might be shared ( all under the watchful eye of the lawyers involved to ensure that appropriate legal principles are applied)