There is no doubt that separation and divorce are unpleasant events (to say the least) for any family and they can signal the start of a difficult and stressful time for all involved. However, for many families in Scotland, they are a reality and all parties involved should be aware of the options open to them in the event of a dispute.
While some separations are amicable and straightforward, disputes arise around the division of assets, the responsibility for debts, financial support and arrangements for children, so it’s worth knowing your options.
And while this time is never easy for children of couples, understanding your position and trying to resolve matters amicably makes the process a lot easier for them.
Is Legal Advice Needed?
Often, families can resolve disputes themselves by direct discussion or negotiations through a third party such as a family member. But if the dispute involves a significant amount of money or assets, it’s a good idea for both parties to take legal advice even if they can reach an agreement.
This means that they are aware of what their legal position is. When an agreement is reached, it’s a good idea to put it in writing and to have solicitors draft a document to this effect, so the agreement is not open to later misinterpretation.
What is mediation?
Sometimes direct discussion isn’t possible or an agreement can’t be reached this way. In these circumstances, mediation is a popular option for many families. Mediators guide the parties towards a constructive solution.
At Gibson Kerr, we have had some very successful mediations where couples have been encouraged to discuss the issues calmly, without assigning blame and in a constructive atmosphere.
Collaborative Process
If mediation is not successful or wanted then a more formal method of dispute resolution is needed. If both parties have solicitors then a collaborative process can be undertaken. This involves the four people working together to find a solution to the dispute during a series of meetings.
The collaborative process can be an effective way for separating couples to reach an agreement, without going to court.
Arbitration
Another option to be considered is arbitration, similar to court proceedings, but the parties choose the arbitrator who will decide on their case.
They appoint an arbitrator and give them details of the dispute. This process can be executed by written submissions or through a hearing where both parties can give evidence. The advantage of this is that a decision will be given that the parties have agreed will be binding.
When might you have to go to Court?
Although usually a last resort, an alternative route is court proceedings. The main advantage of this is that a decision will be made that will be enforceable.
Court proceedings can be lengthy and, the parties involved aren’t in total control of the timescales, the judge, or the process. Any hearings that are fixed have to fit in with the court timetable and there can be a significant delay in securing dates for a hearing. Court proceedings are also expensive.
Speak to the experts
At Gibson Kerr, we understand that every family is different. There is not one best option for all disputes so you should discuss with your solicitor which method is likely to be most successful in your circumstances and how to proceed with the divorce or separation in a way that will least impact the children involved.
If you want to talk to one of our experienced and friendly family law solicitors to discuss dispute resolution in relation to a family dispute, please contact us at info@gibsonkerr.co.uk or by telephone on 0131 208 2260.
