Whilst mediation has value, it is not the universal solution it is sometimes portrayed as. It works best for those who have the motive and ability to compromise, but there are situations where litigation is necessary to achieve fairness and justice, especially when one party is unwilling to engage in reasonable negotiations.
The Limitations of Mediation
While mediation is not mandatory in Scotland, courts have often encouraged it as a means to facilitate amicable settlements through dialogue and mutual agreement. The success of mediation hinges entirely on both parties’ willingness to compromise and act in good faith. Unfortunately, this is not always the case. Inherent in relationship breakdown are difficult and challenging personalities, in particular where there is a power imbalance, a lack of transparency, or an unwillingness to negotiate fairly, mediation can be doomed to fail.
When mediation fails, it can increase emotional strain and entrench divisions between the parties, ultimately prolonging the process. In such cases, litigation becomes essential to achieve a resolution that is fair and just.
The Role of Litigation in Divorce
Litigation is often seen as a last resort or an aggressive move. However, it is not about "winning" or "losing"; it is about ensuring fairness under the law. Litigation may be the only path to justice when other avenues, such as mediation, are unsuitable or have failed.
In litigation, both parties’ cases are presented under the supervision of a court, with decisions based on evidence and law, particularly vital in complex cases involving significant assets, businesses, or serious concerns about the welfare of children. While some clients may wish to settle quickly, a lawyer’s role is to ensure that decisions are made thoughtfully. A proactive lawyer, unafraid to explore litigation, when necessary, can make a significant difference. For instance, I’ve seen clients initially offered £500,000 in negotiations secure over £4 million through litigation.
Litigation can also be tailored to the specific circumstances of each case. Scottish family law provides a variety of legal tools and approaches, from interim orders to protect financial interests to specific measures addressing children’s needs. This flexibility is key to achieving a fair and individualised outcome.
A Tailored Approach to Divorce
Divorce is personal, and no two cases are the same. Therefore, the approach must be tailored to the unique circumstances of each couple. While mediation works for some, it is not a one-size-fits-all solution. Litigation should not be viewed as a sign of failure but rather as one of the many tools available to ensure that fairness is achieved. What fairness looks like may differ between clients, but your lawyer should be seeking to establish your objective from the outset.
Litigation is not a step backward. Instead, it sends a message that manipulation will not be tolerated and that fairness will be pursued through the proper legal channels.
This article originally appeared in The Scotsman.
