There are many options available to parties when negotiating any aspect of familial relationships.
These options exist whether the couple are at the start of their relationship and considering entering into a cohabitation or pre-nuptial agreement, or at the end of their relationship and are contemplating separation or divorce.
In the collaborative process, each client instructs their own collaboratively-trained family practitioner to advise and assist in negotiating agreements on all manner of issues.
The collaborative family law process can be suitable for all types of disputes, including, but not limited to, separation, divorce, child-related matters, pre-nuptial agreements and cohabitation agreements.
The solicitors’ roles are to assist the parties to achieve a negotiated and mutually-acceptable settlement. All participants agree to work together respectfully, honestly and in good faith in order to try and meet their legitimate aims and aspirations.
All of the negotiations take place in a series of “four-way” meetings, at which both clients and solicitors attend. At the beginning of the process, all parties (including lawyers) sign a binding agreement to disclose all documents and information that relate to the issues in dispute.
By signing up to the process, the parties agree that they will provide all information as early as possible, as fully as possible and voluntarily. The parties also sign an agreement stating that they will not litigate, and thus the threat of going to court is removed. If either client decides to litigate, then both collaborative lawyers must withdraw from acting, and each party will have to engage new representation.
Mediation is a way of resolving disputes without recourse to adversarial court-based processes. Mediation takes place between the parties to a dispute in the presence of a trained mediator.
The mediator is usually a single individual, but there are models of co-mediation, where mediators work together to assist the parties to a dispute to reach a resolution.
The mediators are neutral during the course of mediation. The mediator’s role is not to give legal advice to either party, but rather to facilitate negotiation. Both parties often retain their own solicitor to provide them with legal advice outside of the mediation sessions and to draft any legal agreements.
The parties can take any issue, or a combination of issues, to mediation. This can include the management of finances in the short-term, the division of assets in the longer term or issues surrounding the future care arrangements for children.
Mediation can be beneficial for all parties, including, but not restricted to, those separating, divorcing and former cohabitants.
Negotiations can take many forms and take place at different levels, depending on the individual needs of the family.
Despite having separated, some couples may still have a good relationship and be able to communicate effectively. In such situations, parties may wish to privately discuss and agree the basis of their settlement and future arrangements, both in terms of children and/or finances and we aim to support and complement such discussions.
Once such discussions are complete and an agreement reached, both parties can still seek advice on whether the terms of settlement are fair and reasonable and thereafter have matters formalised in a legally-binding document, most commonly referred to as a ‘separation agreement’.
In contrast, where effective communication is impossible, solicitors can undertake the negotiations on behalf of parties.
Once negotiations are complete and settlement is reached, a separation agreement is prepared.
The crucial factor, no matter what form negotiations may take, is to have the settlement terms formally recorded in a legally-binding document. Failing to do so can lead to unnecessary expense and anxiety at a later stage.
Arbitration allows for a independent and impartial arbitrator to make decisions in relation to financial or child related matters arising from separation or divorce without recourse to court.
In family law cases, we are fortunate to be able to call upon certain family law practitioners and advocates who are trained arbiters and who are a member of FLAGS (Family Law Arbitration Group Scotland).
Parties cannot be forced to engage the services of an arbitrator, but the process is intended to be quick, flexible, cost-effective and more confidential than the court process.
Arbitration can proceed if the parties agree to arbitrate; there are no issues with jurisdiction in arbitration.
The scope of the arbitration is identified and agreed in advance, as are the practical arrangements for the arbitration. The parties agree to be bound by the decision of the arbitrator and they are entitled to have legal representation throughout the process.
Sometimes court proceedings are the only option. If the litigation is necessary, we will seek to minimise the issues remaining in dispute and adopt a pragmatic and sensible approach to court preparation and procedure.
We understand that clients will be unfamiliar and apprehensive about the court process and provide reassurance and guidance throughout. Our team are experienced court practitioners and litigators with close links with experienced counsel ensuring you receive strong representation and accurate advice.
Aberdein Considine lawyers Ruth Aberdein and Naeema Sajid are both accredited by the Law Society of Scotland as family law mediators.
In addition, Ruth and Naeema, along with Isabelle Douglas and Leah Guild, are trained collaborative family lawyers.
All of our family lawyers are highly experienced litigators and, if court action is required, we will progress matters efficiently and effectively on your behalf.
Please contact us to find out further information on any of the available options, and we can help you decide which way forward is the best for you and your family.
If you would like to speak to one of our family lawyers about your circumstances, click here.
Kayleigh Maclaren brought peace of mind to our family and for that we are very grateful. May she have continued success as she most certainly deserves it!
S. Welsh, private client
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