When communications break down, what are the options?

Author: Gibson Kerr

There is no doubt that separation and divorce are unpleasant events 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 often arise. Normally, couples need to resolve issues such as the division of assets, the responsibility for debts, financial support and arrangements for children.  If a dispute does arise, it’s worth knowing the options open to you. 

 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 is a good idea for both parties to take legal advice even if they can reach an agreement without the involvement of solicitors. 

This means that they are at least aware of their legal position. When an agreement is reached, it is a good idea to put it in writing and to have solicitors draft a document to be signed and registered. This means 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.  Mediation means that parties discuss the dispute with the help of a trained mediator. A mediator is a neutral party who won’t take sides or give legal advice.  Their role is to guide the parties towards a constructive solution. 

Though often effective, mediation is only likely to succeed if both parties are genuinely interested in reaching a settlement. 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. This can be key to arriving at a solution.

 Collaborative Process

If mediation is not wanted or doesn’t result in a solution, then a more formal method of dispute resolution is needed. If both parties have engaged solicitors who are trained in collaborative practice, then a collaborative process can be undertaken. 

This involves four people (the two parties and solicitors) working together to try to find a solution to the dispute. Typically, they would have a series of meetings. 

 Arbitration

However, if no agreement is reached, another option to be considered is arbitration. Similar to court proceedings, an arbitrator will require a clear remit of what the dispute is and what is to be decided. 

The advantage of this process is that a decision will be given. Before embarking on arbitration, the parties will agree that the decision will be binding.

When might you have to go to Court?

Although usually a last resort, an alternative to the arbitration route is court proceedings. The main advantage of this process is that an enforceable decision will be made. 

However, court proceedings can be lengthy and to some extent, the parties involved aren’t in control of the timescales or the process. Any hearings 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 and each needs to be considered on its own. You should discuss with your solicitor which method is likely to be most successful in your particular circumstances. 

Contact

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 edinburgh@gibsonkerr.co.uk or by telephone on 0131 208 2260. www.gibsonkerr.co.uk