Family Law Services

When a marriage or civil partnership breaks down there will inevitably be consequences of this and many practical issues will need to be resolved.  There will be various financial issues to be determined and, if there are children in the family, arrangements will need to be put in place for them.  There are a number of different options available and choices can be made by the couple about which legal process is most appropriate for them.  The services available from Smail & Ewart are as follows:-

Mediation

This is a voluntary process where the parties, with the assistance of a mutually appointed mediator, try to reach agreement on the issues in dispute between them.  It is a less formal process than going to court and is therefore likely to be less stressful for the couple.  It can also be quicker and less expensive.  In general couples tend to share the costs of the mediator.  The mediator will charge an hourly rate for their services and sessions usually last approximately 1 ½ hours.  Every couple is different but in general three or four sessions will usually be sufficient. 

In order to participate in a mediation process both parties must be willing and must attend the sessions together.  The mediator will try to resolve the issues in dispute but does not give legal advice and if an agreement is reached a solicitor will be required to draw up a formal agreement between the parties. 

Jennifer Gallagher, based in our Lanark Office, has been trained by Comprehensive Accredited Lawyer Mediators (CALM).  All CALM trained mediators are qualified solicitors specially trained to deal with both financial and child related issues.  Jennifer Gallagher has been accredited by the Law Society of Scotland as a Family Mediator. 

The benefit of embarking on mediation for parties is that it allows the couple direct control over the decision making process and enables better lines of communication to be established following the separation.  Mediation however is unlikely to be successful if the parties are not committed to making plans for a separated future or if information is concealed or withheld or there is domestic violence or aggressive behaviour. 

Collaborative Law

Jennifer Gallagher is a fully trained Collaborative Lawyer and is a member of the Scottish Collaborative Family Law Group.  Collaborative Law is a relatively new form of dispute resolution which originates in America.  In order to take part in a collaborative process both parties must instruct solicitors who are collaborative lawyers.  The parties and their solicitors sign a Participation Agreement at the beginning of the process.  In signing this Agreement they are undertaking that the solicitors involved in the collaborative process will not raise court proceedings and the parties are making a commitment to try to approach the dispute from a standpoint of seeking a solution without resorting to court.  Progress is made through a series of joint meetings attended by both parties and their solicitors.  The matters covered at the meetings are recorded by the solicitors.  Necessary financial and other information will be exchanged by the parties.  All parties involved in the process must be committed to making full disclosure.  Where this method of dispute resolution is used the parties feel they are very involved in the negotiation.  The use of joint meetings enable each party to be aware of the other’s position.  This process provides a useful transition for those who are committed to agreeing settlement but who are not in a position where they can agree it between themselves.  If the collaborative process breaks down the instructed solicitors cannot continue to act and if no solution emerges through the collaborative process the parties are required to start afresh with new solicitors if they wish to resort to litigation.

Negotiation

A negotiated settlement involves the parties exchanging information and, with the help of their solicitors, trying to reach the best solution to determine the issues between them.  This is different to the collaborative process since in a negotiation, if matters cannot be resolved on an agreed basis, then the solicitors who have worked on the negotiation, can take the matter forward into court.  If the negotiation is successful then a formal Separation Agreement can be drawn up by the parties’ solicitors.

Litigation

When parties cannot reach agreement, either between themselves or with the help of a solicitor, they can ask a court to make a decision.  This is, in all likelihood, the most expensive way to resolve a dispute but, in some cases, will be the only viable option.  There are fairly complex rules in force between countries which are used to determine which court has jurisdiction.  Where the Scottish Courts have jurisdiction actions of divorce can be raised in either the Court of Session in Edinburgh or in a local Sheriff Court.  The Court of Session is generally chosen where there are particularly complex or unusual issues to be decided, for example in relation to the financial matters and only Advocates or Solicitor Advocates can appear in the Court of Session.  If an action is raised in the Court of Session this fact will have a bearing on the overall costs of the case.  If your case is to be raised in the Sheriff Court then a qualified solicitor can represent your interests. 

The court process can last between nine and twelve months in a Sheriff Court and between twelve and eighteen months in the Court of Session.  In some cases the case can take longer depending on the complexity of the issues and the availability of court dates for hearings. 

Court Action is advantageous in situations where there is a history of violence or dishonesty or there is simply no way forward using any of the other dispute resolution options .  The court process however is based upon the adversarial system which tends to polarise viewpoints and does not encourage flexible or innovative outcomes.  It is often the case that where court action is instructed, negotiation will often continue in parallel and the process can therefore become very expensive. 

If you feel that any of these options might work best in your particular circumstances, then please contact Jennifer Gallagher at our Lanark Office on 01555 666111 or by e-mail at jgallagher@smail-ewart.co.uk