Updated: Apr 8, 2020
Ok, so the picture above may seem a bit dramatic. But ask any divorce lawyer who has dealt with high conflict divorces and he/she will tell you: those cases can feel like a 12 round boxing match. These are the cases that seemingly have no solution that will make both sides happy. The spouses can't see eye to eye or compromise on anything. They are on completely opposite sides of the spectrum. Perhaps there are hurt feelings, perhaps there's a lack of effective communication, perhaps there is distrust, or perhaps they just have fundamentally opposed ways of seeing what is "fair". For these and many other reasons, some divorces are deemed high conflict.
When these cases present themselves, mediation can seem like a waste of time at first glance. Often, the parties have hired attorneys they deemed "fighters" or "pit bulls" so that they can beat down the opposing side and get what they want. Usually, these aren't the couples who are looking to come to a compromise and "settle".
So will attending a mediation resolve any conflicts and accomplish anything? It absolutely can, and often does. Of course, this is more likely if the parties use a mediator who is equipped with the skills and experience to deal with high conflict cases. An effective mediator will manage the parties' expectations, establish clear rules for the mediation, and create an environment conducive to negotiation. When the negotiation proposals are framed in a way to help the parties resolve their issues, the parties can be more comfortable entering into a settlement agreement over which they have control. This is usually preferable to spending countless stressful hours and legal fees just to relinquish control to a judge to decide the outcome.
If you are going to attend mediation (either by court order or voluntarily before litigation begins) and your family law matter is high conflict, make sure you choose your mediator wisely. Ask what strategies he/she will use to manage the conflict, and make sure you are secure with your choice in mediator.
First and foremost, mediation is supposed to be a non adversarial setting. An effective mediator with high conflict parties will recognize the extra steps that will be required to create and maintain a non-adversarial setting throughout the mediation. To create a non-adversarial setting, I like to speak with the parties individually several days before the mediation. I explain the mediation process, what mediation is, and emphasize that it is non-adversarial. I lay out the ground rules and also ask the parties to think about what is most important to them in their family law matter. What do they want to walk away with? What do they need to walk away with? What are their concerns? What are their triggers? I also try to ascertain whether the parties have reached a point where civil conversation has broken down between them. If the parties are at that point, I may suggest that they arrive at separate times so as to avoid engaging negatively with each other in the parking lot or lobby. If the parties are represented by attorneys, I like to speak to them about how we will work together to de-escalate any arguments that threaten to undermine the negotiations.
Once the mediation begins, it is imperative that the non adversarial setting be maintained. I usually remind the parties of the ground rules: not interrupting the other person, not making personal attacks, not raising their voices, not making threats or behaving disrespectfully, not venting about the other party, etc.). If I think this is impossible between the parties or sense that they are less productive when in each other's presence, I move the parties to separate rooms and conduct the mediation in caucus. Throughout the mediation, I try to keep the parties focused on their goals, and offer creative solutions to their dilemmas. For instance, while co-parenting with a united front is typically best for children of divorce, some parents be in such high conflict with each other that forcing communication and co-parenting on them will only lead to more conflict and future litigation. Parallel co-parenting may work best for those parents (separate parent-teacher conferences, separate birthday parties, restricting communication between the parties to writing only, etc.). I also maintain a very structured environment during the mediation. I will re-direct parties who are getting bogged down in their frustrations with the other side, and maintain the focus on their goals to achieve a resolution. I will manage their triggers, and re-frame the negotiation so that it is solution-focused. I will intervene when emotions threaten to escalate a conflict, and I make sure broader disagreements don't arise when we are dealing with a specific issue.
Of course, not every case can resolve through mediation. Some cases will not resolve without a judge imposing a ruling upon the parties, and ordering what the judge thinks is best. But more often than not, attorneys tell me afterwards how surprised they were that their client's high conflict case resolved at our mediation.