Alternatives to Court Action

Within the family team at Livingstone Brown, our solicitors strive to obtain the best outcome for separated families. This may be not always be achieved by litigating disputes via the Court system. While this may be necessary in some cases, it is never the ideal situation. Litigation often has a high cost, not only financially but on the family wellbeing as a whole. With this in mind, our family team always explore alternative methods of resolving disputes prior to engaging in court proceedings. Our Julia Donnelly and Nicola Watson have trained in both collaborative practice and mediation and bring this training to our family practice. It is our aim to make the difficult period of separation as manageable as possible and help our clients maintain control over their lives.

Negotiation

Negotiation, in the context of family law, will usually involve solicitors for each party engaging in correspondence, telephone calls and sometimes meetings to tackle the issues which require to be resolved following separation. This can involve issues relating to the children of the relationship and/or financial matters. The purpose of this negotiation is to come to an agreement which both parties are content with. This form of dispute resolution often does not usually involve the parties coming into direct communication with one another with negotiations taking place via their respective agents.

Collaborative Practice

Collaborative practice allows a separating couple to reach agreement through discussion which takes place via four way meetings. The aim is to remove the need for lengthy correspondence between lawyers or having the matter decided through a court action. There are normally a number of meetings. Each meeting is carefully planned in advance by the lawyers who identify the issues which need to be discussed. Other professionals can be invited to attend the meeting as appropriate, for example financial advisers.

Mediation

In family mediation, parties who have a dispute sit down with an independent mediator to try and reach a mutually agreeable resolution. Mediation can be utilised to resolve financial disputes and/or disputes relating to the care arrangements of children. Mediation is particularly suited to sorting out issues relating to children as the need for ongoing communication and co-operation in relation to children can never be understated. Through the process of mediation it is hoped that parties feel empowered to identify how they feel, listen and understand how the other party feels and search for solutions which will meet the needs of all concerned where possible.

Any agreement which can be reached outwith the court process can be formally recorded within a Minute of Agreement (also called a Separation Agreement). This can narrate exactly what parties have agreed. It will then be signed by both parties, with their signature being witnessed by an independent third party. This Agreement can then be registered with the Books of Council and Session in Edinburgh and becomes a legal document.

We do recognise that there will be some circumstances where alternatives to litigation are not the best way forward. Some examples could be where there has been domestic violence within a relationship, where a party requires an urgent legal remedy (i.e. to stop them from being removed from their home), or where there are child protection issues. Our solicitors have experience in identifying such instances and can advise fully. We will take the most appropriate action for each client’s needs. Please contact a member of our family team for an individual consultation.