Can Divorce Mediation Work in High-Conflict Relationships?

Many people assume that the only way to handle a divorce with a high-conflict partner is to buckle down for a Sophisticated-couple-fightrollercoaster ride of litigation and court appearances. However, one point of view is that this just leads to additional conflict, and a lengthy divorce procedure that can cost a lot in terms of financial input, and emotional sacrifice. During my time as a professionally trained mediator, I have helped couples from a range of different backgrounds and surrounding circumstances to discover an agreeable solution to what may seem, in their eyes, to be an impossible problem. One thing that I have noticed in my experience is that although the mediation process is obviously easier, and less demanding when it’s launched between a pair of ex-spouses who still have a level of communication and amicability between them – that doesn’t mean that the system only works in cases of no-conflict divorce.

There are situation of course, where mediation is not possible, although in almost all circumstances, it is possible to achieve a more lucrative, and beneficial divorce procedure when a cooperative process is embraced – instead of a combative one. This means that it may be worth considering all of the options, before you simply assume that your “high conflict” divorce is limited to litigation.  After all, if mediation and litigation are both avenues that lead to arguments and disagreements between you and your ex-spouse, doesn’t it make sense to attempt to resolve those arguments with an impartial expert before spending time, money, and energy on aggressive litigation?

In my opinion, the process of divorce mediation can still be tailored to high-conflict divorce cases in number of different circumstances. What matters is the way that each party involved approaches the process, and how the structure of the mediation is used to allow for the venting of discomfort, anger, and other negative emotions. Following are four of the circumstances in which I believe that high-conflict divorce procedures can be managed through mediation practices.

When I am aware that the couple I will be mediating are currently dealing with a high-conflict relationship dynamic, we can try to organize the mediation process to create a structured and supportive environment throughout each session. Often, I would recommend that no-one in a high-conflict relationship should consider mediation with a professional who has not got a high level of experience in dealing with divorces from various backgrounds. A highly-structured process may include the use of individual time before and during the procedure as needed, as well as the management and adherence to specific agenda topics.  I will only explore using individual time if both sides are agreeable and each has an equal opportunity for individual time.  I will stress my neutrality to the couple as the one to one sessions are not to be used to strategize against either spouse.

Mediation sessions between any couple should not be used as a place to “vent” issues about the failed marriage. The chances are that venting at your partner has not yet helped you to see eye to eye, which means that blowing off steam during important sessions designed to help you plan your future isn’t going to give you the results you’re hoping for. In order to avoid this, I generally encourage the couple to consider speaking with their own therapists or review attorneys since review attorneys are always a recommended aspect of divorce mediation.

In high-conflict cases, I recommend that my clients don’t attempt to discuss the mediation or speak about their issues outside of the mediation sessions. Each client should drive separately to and from the session, and minimize the urge to continue an argument outside of the process, or finish an unresolved topic.  While often I do recommend that the couple talk about issues outside of mediation in order to minimize the time needed to be spent with the mediator, I would not suggest that for high conflict couples.  In high-conflict circumstances, arguments can escalate quickly, unraveling delicately won agreements.  I also suggest that each person speak to me in sessions, rather than addressing the other, in order to minimize arguments.  I also allow each person the equal opportunity to speak, and not interrupt the other when it is their turn to speak.  Ground rules can help us get through the issues that need to be discussed.

Meeting with a trained divorce coach before the mediation process takes place can help to prepare both parties for the divorce process, and allow them some time to recuperate and assess their future, rather than focusing on a current anger, hatred, or sense of disappointment that might be coloring their ability to think clearly.  Divorce coaches are a regular part of collaborative law so if this suggestion sounds attractive, perhaps collaborative law might be the appropriate process for your divorce.  But, coaches could be used for mediation as well. People who need to negotiate with high-conflict ex partners generally find that they are more successful when they understand the process of the mediation procedure, and can anticipate and prepare for the discussion of difficult topics. Pre-mediation coaching can also be used to help individuals find positive ways to react to “triggers” that might cause issues during the mediation, while learning skills to manage their emotions and stay focused on pursuing the best interests relevant to themselves, and their children.

Why Mediate?

The process of closing a relationship is always difficult – particularly when you are dealing with the involvement of children, or a particularly difficult spouse. Mediation helps to work out solutions that are tailored to your specific needs, and it can represent an important step forward when you’re making positive changes to your life following the end of your previous relationship. In mediation, you have the opportunity to manage your own process, without lawyers speaking on your behalf, meaning that issues can sometimes be resolved quickly, at a lower cost, and with reduced stress.

Even if mediation cannot help you to reach a final agreement with a high-conflict partner, it could help to identify and reduce the issues in dispute, minimizing the harmful effects of a prolonged conflict through litigation. However, with all of that in mind, I can still recognize that mediation will not be successful for everyone. Some of the higher-conflict disputes addressed will still require an outsider (such as a judge) to offer a solution. Yet, through mediation, many people can successfully create a future from their divorce, though the process begins with feelings of distrust, hurt, and anger.

If you’re interested in finding out more about the mediation process, or you’d like to see whether it could work for you, please reach out to the law and mediation office of Mr. Darren M. Shapiro. I’ll be waiting to help discuss the unique aspects of your case, either via 516-333-655, or if you fill out my online form.