With its sharp eye for making money from our fascination with other people’s problems, the media has regaled us with a constant catalogue of dramas centred on the courtroom ranging from Rumpole of the Bailey to the super-slick Suits, starring the now Duchess of Sussex, and now a diet of daytime television ‘people’s courts’.

The reality, as anyone who has attended court knows, is rather less colourful and much more arduous than the fiction. When it comes to family law, litigation can be extremely adversarial, sometimes downright unpleasant and the eventual outcome rarely satisfies both parties.

Which is why Alison McKee, who heads the family law team at solicitors Lindsays, believes that Alternative Dispute Resolution (ADR) is an infinitely preferable way to resolve differences when couples decide to divorce.

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The alternative approach

ADR, which includes mediation and collaboration has increasingly been part of a more creative and less prescriptive agenda in Scottish law firms and, says McKee, has several important advantages. It’s cheaper, quicker and less adversarial than court proceedings, making it more likely the parties can resume a constructive relationship in the future.

“When people are in the midst of perhaps the most acrimonious situation of their lives they tend to take the most extreme positions and an exchange of lawyers’ letters making a series of demands and counter demands sets a very poor tone for the negotiations. It’s not a positive start to the experience,” she says.

ADR, she explains, involves sitting down in a room with a third party in the case of mediation or a four-way settlement meeting in the case of collaboration.

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A positive environment

“It establishes a forum where in a sensible and thoughtful way both parties can pinpoint what the principal difficulties and things causing the most angst, are. And that forum is a much more positive environment, allowing couples to discuss extraneous and emotive issues and then to focus on and resolve the financial and childcare issues with all these difficulties stripped away.”

McKee concedes that there are some cases where ADR will not be appropriate: for example, situations that involve domestic violence, controlling behaviour, circumstances that involve children which are distressing and complex – or, occasionally, cases where clients are simply not interested in finding a positive outcome, winning being their only objective.

“Increasingly, though, people are coming to see that the court process can be damaging. Going to court pits not only yourself but your extended families against each other – as you have to provide witnesses to support your position –  and things will be said that cannot be unsaid. This can sour relationships between the families and children are often caught in the middle of this unpleasantness,” she says.

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And, she adds, the separating couple will be co-parenting these children with both families involved in their futures. “You have to think about what’s more important – getting more money in the immediate settlement or being able to attend your child’s graduation or wedding in the future. Putting that into perspective may involve redefining what it means to ‘win’.”

ADR, she believes, is the preferred route where at all possible. In mediation, the mediator is an impartial third party whose role is to help parties communicate and work toward a solution.

Collaborative law is often used in family disputes such as divorce and the future arrangements for children. Both spouses retain separate lawyers, and negotiations take place in “four-way” settlement meetings that both clients and solicitors attend.

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The collaborative team

“Collaboration is a somewhat more involved process but I have found a preference among clients to take that route because it effectively takes them from the beginning through the very end of the process with a commitment to avoid litigation,” says McKee, who is a member of Consensus Collaboration Scotland, an organisation of Scottish lawyers, family consultants and financial specialists.

Now that collaborative law is interdisciplinary, clients have the option of including these other trained professionals on the team, bringing specialised knowledge and input to help identify and resolve the sources of conflict.

“We can bring in counsellors when there are emotional issues to work through that are a block to finding a constructive outcome, allowing the solicitors to deal with the purely legal aspects. 

“And in dealing with financial matters, while two experts might reach separate conclusions that differ markedly, when a collaboratively trained financial expert is appointed they can give an answer that both parties are bound by,” she says.

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Removing the fear factor

“An Independent Financial Advisor who is collaboratively trained can advise not only on the value of what the parties will get but also how their assets can work best to give them what they need in the future, because one of the biggest bars I see to a constructive negotiation is fear,” she says.

“It’s fine to be told you will receive a share of so many thousands of pounds but what does that actually mean? People don’t understand what their life will look like from a financial perspective on a day-to-day basis and fear can make people irrational, closed and defensive. An explanation of how the asset will be used can be a much more positive experience.”

Through collaboration, she says, couples can reach a more creative agreement, one that works especially well for their unique circumstances and achieves a result that may go beyond what a Sheriff could decide.

“With collaboration, couples can put anything they want into an agreement, but the key is that there is agreement,” says McKee. “An arrangement reached through the mutual agreement of a couple has far more chance of success than if someone has a court order imposed upon them against their will.               

“And in the collaborative forum, the priority is taken away from identifying blame or fault on either side and the focus is firmly on discovering how, through considered and sensible discussion, couples can work together to achieve a positive and constructive result.”

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Alison McKee, Partner and Head of Family Law at Lindsays, has over 20 years of experience and is accredited as a specialist in both Family Law and Child Law by the Law Society of Scotland.

Alison advises clients on all aspects of family law, including complex financial settlements in divorce and separation situations, preventative measures such as pre and post-nuptial agreements, cohabitation agreements and child matters including residence, contact and relocation.

She is fully trained and accredited in Collaborative Family Law and is a member of the Family Law Association, and Consensus, the Scottish Collaborative Family Lawyers Group

Alison will be happy to advise you on the best options for your particular circumstances.  If you would like to get in touch with Alison, please call her on 0141 302 8447 or email alisonmckee@lindsays.co.uk.

Lindsays is a Scottish firm of experienced lawyers who can provide expert, accessible and reliable legal advice for people and businesses. We support our clients at every stage of their journey through life in areas related to their family, work, property, business interests and retirement, and with any other issues that may crop up along the way.

Contact details for Alison McKee

T: 0141 302 8447

E: alisonmckee@lindsays.co.uk

W: www.lindsays.co.uk