Why Mediate? Because Breaking Up Is Hard To Do

It's that time of the year when stories abound in the media about an increase in divorce activity. In the office colleagues smile at me in the corridor and ask if the expected deluge of new clients has materialised. 

However, for me the idea that January is the month when people separate or divorce is a bit of an urban myth. There is no doubt that when things aren't going well and people are considering separating they will perhaps decide not to do so before the festive period but at the moment every month of the year is a busy month for family lawyers. 

Anecdotally, between a third to half of all marriages end in separation and divorce. In addition, more than 50% of cohabiting couples separate. This suggests that, all-in-all, nearly half of all relationships come to an end. Often there are matters relating to the welfare of children to resolve and there are almost always financial issues. 

Because of the difficult financial backdrop in Scotland today some of these financial issues have become more acute. That old Neil Sedaka song Breaking Up Is Hard To Do has never been more apt as people struggle to sell houses and lenders refuse to transfer title. Personal debt is increasing, job stability is at a low and wage rises are not keeping up with inflation. 

In the past, when a couple decided it wasn't working very often one party would move out and rent another property. This would give everyone a chance to try and work out what should happen. Nowadays in many cases this just isn't possible. Couples cannot afford to live in two separate places and therefore have to remain living under the same roof while the house is marketed. As everyone knows, the housing market is dire so we are left with a situation where people who do not want to be with each other are forced to continue to live together and relations inevitably deteriorate. This can trickle down and children become more aware of and affected by their parents' conflict. 

These are the economic realities. There is no way to deal with this other than cope but if the right process is chosen then I believe the situation can be made easier. Where the children are to live and how the money is to be divided are very important issues but how the couple interact during the negotiation is also crucial. The poorer relations become the less chance there is of a positive outcome. For these reasons, I would say that a decision to mediate to resolve the situation is in most cases a very positive one.

It is far better to meet and discuss what is best for your children rather than write letters about them. Sitting down with a neutral person, who is trained in the discipline and can help guide a way through the maze of financial difficulties, is also beneficial but perhaps the most useful aspect of mediating a dispute is the possibility that communications between people in conflict can be improved. It is very often the case that if people can understand why they are angry at one other, and can go onto discuss what would be best for the family as a whole, then this is more likely to bring about a resolution than litigation. Importantly, it is also a chance to ensure that relations in the future are as good as can be reasonably expected. 

The focus of my work is family law but a decision to mediate is not only appropriate in family cases. Disputes in the workplace, disagreements between members of a family business or a housing problem and other civil cases which would be normally dealt with by the court can all be referred to mediation. In any of these situations, where there is the likelihood that the parties will have an ongoing relationship then surely it is best for them to have a chance to sit down and discuss the circumstances behind the dispute, why there is conflict and try to work through the situation. There will be instances when the parties are irreconcilably far apart and there will be no alternative to litigation but hopefully these should be few and far between.