Family law: Mediators centre stage to stop the gloves coming off

Published on Monday 21 March 2011 17:20

With Scotland's divorce rates having just hit a 30-year-low, according to the latest figures from the General Register of Scotland, it might be thought that family law specialists were in the middle of a significant downturn in business.

Far from it. Although there were 9,893 divorces in Scotland in 2010, the lowest figure since 1980 when 9,068 divorces took place, family lawyers are busier than ever, though not necessarily in divorce cases in courts.

Registrar General for Scotland Duncan Macniven explains that the decrease in divorces has been gradual in recent years. "This is not unexpected," he says.

"The Family Law (Scotland) Act 2006, which came into effect on 4 May of that year, reduced separation periods for divorce, so there was an increase of more than 2,000 divorces in 2006, followed by decreases in 2007, 2008, 2009 and 2010. The average of these five years is about 11,500, which is slightly higher than the levels recorded immediately before the change in legislation."

The reason why family lawyers are still busy is a distinct change in the way Scots are getting divorced. Developments in mediation and what is known as a collaborative law have seen fewer couples hammering out their futures in the sheriff court.

One of the country's largest family law practices is part of the multidisciplinary firm Tods Murray. It has launched a "Survival Guide to Separation and Divorce" which is free to download at www.todsmurray.com/family-law.

Lucy Metcalf, senior associate in the family law team at Tods Murray, says: "Mediation and collaborative law are definitely on the increase. That has to be a good thing, because ultimately an agreement that is reached by the couple themselves and involves both parties in discussions has much better chance of being workable for the future than one that is imposed on them by a court.

"We are finding that more and more people want an amicable resolution and definitely want to decide their futures for themselves rather than have the courts and lawyers do it for them.

"Our guide will give people a simple steer through the different ways you can try to reach an agreement with your partner if you are separating."

The processes towards separation are more varied than ever before in Scots law, according to Tods Murray."We would say there are several different ways in which you could try to resolve your differences when separating," says Metcalf. "The first is simple discussion where it might be possible for people to reach agreement between themselves on arrangements for care of children and financial settlements with regard to property and assets. The disadvantage of that is that for lots of reasons, people might change their minds, so it might be better to have a more formal process in place, which includes mediation.

"A mediator may or may not be a lawyer, though lots of family lawyers are trained mediators and I myself am a lawyer mediator accredited by the Law Society of Scotland, which means that I can help facilitate discussions between people to reach agreement. The mediator does not give legal advice, but helps the partners to focus on reaching agreement as part of a controlled process.

"It is a formal process and parties sign up to it, which includes agreeing to act in a particular way and to be respectful and civilised towards one another - a mediator will stop the mediation if they are not behaving properly. That might happen if one half of the couple feels intimidated or bullied by the other. Mediation might not be the best process in that case."

The next process is one which began life in America's legal system - collaborative law. "It is relatively new in Scotland but not brand new," says Metcalf. "It is basically a dispute resolution model where parties are encouraged to find their own solutions and to make decisions themselves. The difference between mediation and the collaborative approach is that each party has their lawyer with them in all the discussions.

"Right at the beginning of the process everybody involved, the two parties and the two lawyers, sign up to an agreement which states that they will all try to resolve things respectfully and work together.

"The process is not conducted by lawyers writing letters. Everything is done openly in four-way face-to-face meetings with the two parties and the two solicitors present. This can be useful to maintain a good relationship between a mother and father, for instance, so it is particularly important when there are arrangements to be made for children.

"They also all agree that if they are not able to resolve things through the collaborative process then they won't go to court - that means that if it all falls to pieces, the solicitors who were taking part in the collaboration cannot act for their clients in court. That's a big disincentive for the clients, because if the collaboration was to fall apart then they would effectively have to start again with a new lawyer, as their own lawyers agreed not to go to court.

"Collaboration is about the parties keeping control of the process themselves because they are not sitting at home wondering what their lawyer is writing.There are all sorts of possibilities for problems with correspondence, for someone to get the wrong end of the stick, say, or for lawyers to go down the wrong road on some point, whereas if everybody is face to face, everything is much more open."

Conventional negotiations between lawyers will always remain an option, with parties simply instructing their solicitors to carry out negotiations and correspondence.

"The traditional method can be flexible, too," says Metcalf, "and we have long advocated face-to-face meetings as part of it, but the collaborative approach gives a structured format to the way those meetings take place."

If all these processes fail, two parties in a failed relationship always have the option of going to court, which can be expensive and time-consuming.

"It can be necessary when parties simply cannot agree on things such as care of children," says Metcalf, "or when something needs to be done in a hurry over problems such as child-protection or domestic-violence issues. There will always be circumstances where court proceedings cannot be avoided."

Ideally, no couple would ever split up and organisations such as Relationship Scotland are there to help bring people together and keep a marriage or civil partnership going with the help of mediators.

The fact is that marriage and civil partnerships are still popular - the number of marriages in Scotland rose last year to 28,480, up 956 from 2009, and that could signal a boom for those lawyers who have pre-nuptial agreements in their skill set.

Pre-nups are supposed to be the preserve of the rich and famous, but more and more people in Scotland are signing up to them, and of course, they make separation easier as arrangements are agreed in advance.

They are much more common than may be thought when a family business is involved. Tods Murray's variety of disciplines across the company means it can advise people when, for example, someone who is part of a family business gets married and succession arrangements need to be formalised.

"Pre-nuptial agreements have a crucial part to play here," says Metcalf. "Pre-nups have been in the news recently, but they're not new in Scotland where we have a long history of people contracting with each other when they get married. We have always had inquiries from, for example, fathers whose sons in the business get married, and it is definitely better to have arrangements formalised before marriage."

Law inevitably plays a part at the other end of the process, when a formal relationship is going to be sundered, law will inevitably play a part in that. Discussion, mediation and collaboration seem to be the way that many separating couples are choosing to end their formal relationship, and anyone looking for an accredited mediator who is also a family lawyer should consult CALM Scotland, the association of lawyer mediators, whose website is www.calmscotland.co.uk.Cath Karlin, head of family law at HBJ Gately Wareing, is in complete agreement that collaborative law is very much catching on in Scotland, and the website www.collaborativepractice.com gives a comprehensive portrayal of this burgeoning area of law.

Karlin says: "The law world is catching on to the collaborative approach, and that's possibly because it means that if there is conflict between the parties, they can have their own lawyer present who will work together with the other lawyer to effect a settlement that is in the interests of the family as a whole."

Pointing to the growing problem of people separating where one partner or other or both is in considerable debt problems, Karlin said that the common situation in the past where a house was sold, the proceeds divided, and both parties were able to move on, no longer applied in many cases.

"People are finding it more and more difficult to shift the main asset, namely the house, and it is definitely an increasing problem," says Karlin. "People are finding the matrimonial 'pot' isn't what they thought it was, although for some businessmen, for example, it's a good time to get divorced because the 'pot' is half or quarter of its value back in 2007, and wives are not getting anything near what they were getting back then."

Karlin has herself worked on a major divorce case which recently changed Scots law. Jim Morrison, a former multi-millionaire, and his wife ended up in the Court of Session where the judge, Lady Clark, ruled that investments in a trust were not untouchable, as previously thought, and she ordered that payments into a trust set up by Mr Morrison be set aside on a limited basis in order to pay Mrs Morrison some of the settlement she sought.

Karlin said: "This is new law, and is clearly a very complicated case, the implications of which are still be discovered, but the findings will have a major impact on divorce settlements in Scotland, potentially opening the floodgates to those seeking to get their hands on trust assets. Those who felt that a trust was a safe option in such proceedings will clearly have to reconsider this approach."

Scots law also has a new way of dealing with broken relationships, and it is not one that has yet been greatly heralded. The Arbitration Act (Scotland) 2010 has only just taken effect, but according to Karlin, it could present a new process for dealing with separation disputes.

"The family law community is ahead of the game here," says Karlin. "We have actually got out own organisation called the Family Law Arbitration Group Scotland, or FLAGS, and we have carried out training of more than 30 family lawyers so that we are now able to arbitrate in family disputes. Again, this is a process which keeps things out of court which is in the interest if clients."

More mediation, more collaboration, more arbitration and more pre-nuptial agreements. No wonder family lawyers are busy.