Disputes arise in family situations from time to time and often where a couple are separating. At this time, normally there is the need to resolve issues such as the division of assets, the responsibility for debts, support by one party of the other and arrangements for children. However, disputes can arise at any time. It is useful to know the various possibilities there are for resolving such disputes.
Is Legal Advice Needed?
Often, parties can resolve disputes themselves by direct discussion or negotiations through a third party such as a family member. If the dispute involves a significant amount of money or assets, it is probably a good idea for both parties to take legal advice even if they subsequently reach an agreement without the involvement of solicitors. This means that when they discuss a settlement with the other person, they at least are aware of what their legal position is. Once an agreement has been reached, it is normally a good idea to commit this to writing and at that stage it is recommended that solicitors should be engaged to draft a document reflecting what has been agreed between the parties. Both parties would sign this document and then if the parties wish it, the document can be registered. We have seen many written agreements drafted by parties themselves and they are often open to interpretation or do not accurately reflect what the parties have agreed. It is for this reason advisable to have a solicitor draw up the agreement.
Mediation
If direct discussion is not possible or if it does not result in an agreement, other more formal methods of dispute resolution are available. One route that is increasingly popular is mediation. Mediation is process whereby the parties discuss the matter in dispute with a view to try and resolve their differences. They do this with the help of a mediator. The mediator’s role is not to provide legal advice. The mediator is a neutral person in the process and does not take sides. The mediator’s role is to guide the parties towards a constructive and forward looking solution to the issue at hand. It has varying degrees of success. It is only likely to succeed if both parties are genuinely interested in reaching a settlement using that method. We have had some very successful mediations where parties have been encouraged to discuss the issues calmly, without assigning blame to the other party and in a constructive atmosphere. This can be helpful towards arriving at a solution.
Collaborative Process
If parties do not wish to mediate or if mediation does not result in an agreement, parties then may wish to move to a more formal method of dispute resolution. If both parties have engaged solicitors who are trained in collaborative practice, then a collaborative process can be undertaken. A collaborative process involves four people namely the two parties and their respective solicitors working together to try to find a solution to the dispute. Typically, the four parties would have a series of meetings. First they would identify the matters in dispute. It is likely that information would be required in order that a negotiation can take place. This might be valuations of properties or redemption statements of outstanding mortgages. Parties would decide who will obtain each piece of information and then a further meeting would be arranged. If the dispute is of a financial nature, sometimes a financial advisor will brought in to the collaborative process. That person will attend meetings with the parties and their solicitors and that advisor will remain neutral. They will however be present in order to answer questions of a financial nature. For instance, it may be important to know how much one party might be able to secure by way of a mortgage. Having a financial advisor available at a meeting is likely to result in matters being moved on more quickly since a financial advisor is likely to be able to give an accurate answer to that sort of question. The collaborative process can be useful and can result in an agreement.
Arbitration
However, if no agreement is reached, another option the parties can consider is arbitration. Arbitration is similar to raising court proceedings. However, it is different in that the parties themselves choose the arbitrator who will decide on their case. They will typically appoint an arbitrator and give the arbitrator the details of the dispute. The arbitrator will require a clear remit what the dispute is and what is to be decided by him/her. The process can also be agreed on by the parties. It may be that the arbitrator will be given all information by way of written submissions. Alternatively, the parties may want to have a hearing where they can give evidence to the arbitrator or can at least make oral submissions. The advantage of this process is that a decision will be given. Before embarking on arbitration, the parties will agree that the decision will be binding upon them.
When might you have to go to Court
If parties do not wish to go down the arbitration route, another method is court proceedings. The advantage of court proceeding is that a decision will be made and it will be enforceable. However, court proceedings can be lengthy and to some extent the parties are not in control of the timescales, the identity of the judge, nor the process. Court proceedings progress within a strict framework of procedure so it is predictable. However, any hearings that are fixed have to fit in with the court timetable and there can be significant delay in securing dates for a hearing. Court proceedings are also expensive.
Each dispute and each party is different. Therefore, there is not one best option for all disputes. Some disputes will be more likely to be resolved by one method and others by another method. It is important to discuss with your solicitor which method is likely to be most successful in your particular circumstances. If you want to discuss dispute resolution in relation to a family dispute, please contact us at info@gibsonkerr.co.uk or by telephone on 0131 202 7516.