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The Role of Mediation in Resolving High Conflict Divorce Cases
How mediation can help separating partners involved in a high conflict divorce.
Duane Coker
Family Law Attorney and Founder Coker, Robb & Cannon, Family Lawyers
Posted on
Navigating the turbulent waters of a high-conflict divorce is a daunting task. The emotional turmoil and the legal complexities can be overwhelming, particularly for couples entangled in angry, bitter battles over assets, custody, and personal dignity. Utilizing mediation offers a beacon of hope, guiding disputing partners toward a more harmonious resolution.
The tug-of-war: understanding high-conflict divorce
A typical divorce is stressful enough, but when tension escalates to severe levels, it becomes "high-conflict." This scenario often involves not just a legal battle, but a deeply personal struggle, where respect and communication have likely eroded. Mediation enters the picture as a tool to re-introduce dialogue and reduce friction.
Consider the case of a narcissistic partner who views the divorce as a final battleground to exert control. The intent might be to "win" by claiming more assets or undermining the other's rights. It's a pattern that complicates the separation process, and without proper intervention, one party may unjustly lose their fair share – emotionally and financially.
Mediation: a bridge over troubled waters
Mediation involves a neutral third-party mediator who facilitates discussions between divorcing spouses, fostering an environment conducive to cooperation. The mediator won't take sides or offer legal advice but will help the couple find common ground to agree on divorce-related issues.
Key benefits of mediation in high-conflict cases
Encouraging collaboration, not confrontation
In high-conflict divorce cases, reducing direct confrontation is crucial. Mediation allows each individual to express their concerns in a structured setting, diminishing the opportunities for explosive interactions and focusing on solutions that serve both parties' interests. This is especially important for high conflict divorces involving children.
Customizable agreements and near-limitless options
Whereas court rulings can be rigid, mediation offers flexibility. Couples can arrive at unique agreements tailored to their unique situations, such as parenting schedules, asset division, or financial arrangements.
I like to tell clients in mediation that, if they go to court, the judge has very limited tools to resolve their case, all contained in a small toolbox called the Family Code. However, mediation is like walking into a Lowe’s or Home Depot, offering an almost unlimited selection of tools the parties can use to resolve their divorce. In most states, the judge will sign any agreement the divorcing parties reach, which, especially in cases involving children, allows them to customize their post-marriage arrangements in a way that fits their desires and lifestyle.
Preserving privacy and dignity
Court battles are a public affair. Mediation, conversely, happens in a private setting, offering a discreet way for couples to resolve their disputes without the public scrutiny that often comes with court proceedings.
A real-life example demonstrating the power of mediation
Imagine a scenario where one spouse, steeped in narcissistic tendencies, attempts to dominate the divorce negotiations, insisting on taking nearly everything. Mediation serves as the protective shield for the other spouse, striving to equitably split assets. Here, the mediator assists by keeping conversations focused on fairness and legal standards rather than emotional retaliation or manipulation. On the other hand, if a mediator is not involved, the other spouse runs the risk of losing everything in the divorce. On top of the emotional aspect of a divorce, having to start over financially later in life is devastating, especially when it can be avoided with the right help.
A good mediator will work with the spouse’s attorney to keep them from seeking extreme, and ultimately very unlikely, results in the case. As both an attorney representing a client in mediation, and as an attorney serving as the mediator in hundreds of divorce cases, I work hard to keep the clients thinking about their divorce in a “business-like” manner. Asking questions like, “What do you want?”, “What will it cost you to get what you want?”, and “What is the likelihood of getting what you want if you don’t reach an agreement and allow the Judge to make the decision?” are helpful things to consider when trying to reach an agreement.
Focusing both parties, but especially the party with narcissistic tendencies, on the reality of the situation is the key. A narcissist wants to win. A skilled family law mediator can work with that person’s attorney to show them that, by insisting on the impossible and going to court over it, not only is the narcissist likely to lose, but it’ll cost them significantly along the way. This can be crucial to convincing that person that resolving their case reasonably, in mediation, is the real way to gain a “win” from a difficult situation.
Making mediation work for you
Couples entrenched in a high-conflict divorce can consider the following to make the most of mediation:
Choose the right mediator: Select a mediator experienced in handling high-conflict cases and skilled in de-escalation techniques. I believe it’s very important to use a mediator trained in family law and who is familiar with the judge likely to hear your case if it doesn’t settle.
Prepare thoroughly: Come to the mediation session well-prepared with the necessary documents and a clear understanding of your rights and desires.
Embrace the process: Keep an open mind and be willing to compromise where possible. The aim is to achieve a fair settlement, not to "win" at the other's expense.
Utilize a co-parenting tool: If you have children, using a co-parenting service like TalkingParents can be a great way to supplement your work with a mediator during a high conflict divorce. Keeping all interactions documented can help you foster better communication habits and set boundaries right from the start of your co-parenting relationship.
There are many reasons to work with a mediator to get through a divorce. Financially, it can also be a cost-effective option. Considering that divorce is often quite costly, this alone is a good reason to consider mediation.
Parting words: finding common ground
Having guided countless clients through the veils of high-conflict divorce and having served as the mediator in hundreds of family law matters, I'm convinced that mediation isn't just a resolution method; it's a path to dignified separation. While the road to agreement isn't always smooth, the proactive approach of mediation places control back in the hands of those most affected – the couple themselves.
For potential legal clients, individuals enduring a divorce, or content seekers on conflict resolution, remember that you are not bound to the battlefield. Empower yourselves with the knowledge and support of skilled mediators and legal counselors to transition from disorder to detente. With mediation, peace isn't just a possibility; it's within reach.