mediators centre stage to stop the gloves coming off

22nd March 2011

Cath Karlin, head of family law, is in complete agreement that collaborative law is very much catching on in Scotland, and the website 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.