Today – like every day – the media will report on a world dominated by international face-offs that set up sequestered self-interest against cooperation and collaboration. The same principles collide on the domestic front when resolving any dispute requires two opposing parties to recognise their differences – and effect an amicable outcome without undue personal or collateral damage.

For Noel Ferry, a partner at legal firm Turcan Connell and a specialist in family law, that is what collaborative law is all about. When it comes to separation or divorce, among the main objectives of collaborative law he says are minimising conflict; ensuring the best future for your children; securing your financial choices and minimalising the emotional damage.

The collaborative approach, he says, originated in the US some 15 years ago and has been part of a more creative and less prescriptive agenda in Scottish law firms for the past decade. There are, he says, thoughtful and sensible reasons for to explore the option.

“Amicably negotiated settlements are much preferable to the traditional adversarial approach and there has been a definite movement toward offering separating couples a non-confrontational way of agreeing the legal and practical arrangements for their separation or divorce,” he says.

“Almost inevitably people find themselves in an emotionally charged situation: there is a lack of trust but if it’s an open discussion around a table with intermediaries there’s a level of transparency that allow people to relax and establish a degree of trust. That can only be a good thing, especially when there are children involved.”

Ferry is a trained Collaborative Lawyer and is a member of the Scottish Collaborative Family Law Group Consensus. He explains that collaborative law involves the parties and their advisers all signing up to not going to court. The parties agree to deal with discussions around the table, in private, without the delay of correspondence and interference of third parties.

The use of four brains instead of two versus two, he adds, can lead to creative solutions which the parties would not necessarily gain from the traditional adversarial process.

More solicitors in Scotland are now training collaborative law as are intermediaries who include intermediaries who include  financial advisers and counsellors. “The process is flexible, so if it’s identified at the outset that the parties might require counselling they can be referred to counsellors who are collaboratively trained and if we need an IFA or valuer we can source one who is collaboratively trained.

“That might be their existing joint adviser who can give neutral advice, meaning the parties only have to instruct one adviser between them rather than both getting different IFAs or valuers and disputing the difference,” says Ferry.

Perhaps the best thing about collaborative law, he says, is that is case managed, and often resolved within four meetings.  “You don’t go in to try to make proposals at the first meeting because you don’t have the necessary information; that’s about establishing the background. 

“The second meeting involves the parties coming in having done some homework and providing information about their assets.  The third might be a creative discussion about deciding on how to divide these and the fourth will result in a settlement, though there can be additional meetings if necessary.”

Usually, though, he says a maximum of five meetings will achieve a result and while the timescale varies according to client requirements and if there are significant assets involved it will three to four months, sometimes less. That is significantly faster – and less costly – than the traditional route. Without collaborative law the typical negotiations for a separation can last for a year if there are significant assets involved and if it goes to court it can go on for up to three years.

Most law firms in Scotland who have family teams now have collaboratively trained practitioners, says Ferry so the momentum is building toward this type of resolution.

“Most clients are suitable for collaborative law and show a preference for the idea when alternative methods of dispute resolution are explained to them. The Law Society requires us to do that and most people are keen to adopt the collaborative approach when it’s possible for both of them to agree to the principle.”

Cohabiting couples have an extra incentive to opt for collaborative law, he says. “A cohabitation claim can be quite an intensive case because the law is relatively vague as to what a cohabitant might be entitled to and what is fair will be different in in every case. Unlike a divorce settlement in which there are clear principles, the majority of cohabitation claims end up in a decision being reached by the court.

“We have many clients who have busy lives, as professionals and entrepreneurs who want to be able to resolve their separation in the same fashion as they would a business arrangement – essentially a meeting that involves reasonable negotiation and will ensure the best result for both parties.”

Add to this the tax benefits that can result from reaching a swift settlement, there is a persuasive case for dealing with separation and divorce through collaborative law. “With four people sitting a table means that there is complete transparency – both parties are aware of what the division of assets is and how that decision has been arrived at,” says Ferry.

For more information you can contact Noel Ferry, at Turcan Connell on 0141 465 7941 or visit our site

This article appeared in The Herald on Sunday on 27th Jan 2019