Can Mediation Help Settle A High Conflict Divorce?

“Put aside the notion that your attorney is a great courthouse advocate whose skill and ability will hypnotize the judge. Your case is not going to trial before a judge — short of a miracle; if it does‚ it will be a financial catastrophe for you.” — former California Superior Court Judge James W. Stewart‚ from his book: Divorce Handbook for California

Lori A. Grover is a Divorce and Family Conflict Mediator trained and nationally certified by Lakewood College‚ a member of the National Association of Certified Mediators (NACM)‚ and a member of the Association for Conflict Resolution (ACR).

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When Divorce Mediation Won’t Work

Even though the majority of Divorce settlements can be successfully resolved using a Divorce Mediator‚ it won't be suitable for every case. What follows below are a few examples of situations where we would recommend against trying to Mediate and we would refer a couple to the alternative process of litigation.

• Your Spouse Is Abusive And Intimidates You

  • The need to feel calm and unthreatened during a Mediation session is critically important. A Mediator is trained to diffuse tension and conflict and manage the environment allowing both parties the chance to air their views and contribute to the final outcome. However‚ if your spouse intimidates you for whatever reason‚ then litigation is a better choice.

• Your Spouse Is Habitually Dishonest And Can’t Be Trusted

  • A Divorcing couple is required to provide to each other an honest accounting of their personal property‚ income‚ debt and expenses. Spouses providing false or incomplete information could make themselves liable for punitive damages and even indictment for perjury. If one spouse’s dishonesty in giving a factual accounting in this regard is proven to be fact‚ any settlement could be set aside. Therefore‚ if you have strong reason to suspect your spouse is hiding assets, for example, and won't be honest and forthcoming during the Mediation process, you should retain an Attorney.

• If One Spouse Is Strongly Opposed To The Divorce

  • The decision to seek a Divorce might not be mutual‚ and one spouse might want to try to reconcile and save their marriage. A couple who has strongly opposing feelings toward an impending Divorce can still use Mediation successfully‚ but Mediation does require both sides to engage directly in the process. Realistically‚ if one spouse is emotionally unable to accept that the other wants a Divorce‚ that spouse can almost certainly be expected to struggle with the Divorce Mediation process. For such couples‚ better alternatives may be couples counseling to save their marriage‚ individual therapy for the resistant spouse or unfortunately‚ Divorce litigation using an Attorney.

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The Hardest Questions About Divorce Mediation

• Must We Be In The Same Room? Can Our Mediator Act As A Go–Between?

  • Direct communication between both parties is the most effective way to Mediate so we naturally we emphasize joint sessions together with your Mediator in the same room. However‚ your Mediator may break a joint session at an appropriate time to relieve tension or to meet privately with either party. With their consent‚ the Mediator can also use these private meetings‚ or “caucuses” to serve as a go–between if this type of “shuttle diplomacy” will help facilitate a resolution.

• I Don’t Like Confrontation‚ What Can I Expect In Mediation?

  • Mediation is non–confrontational. Very different from either the fight or flight responses to conflict‚ it is oriented toward settlement without assigning blame‚ fault or guilt on either party. Having said that‚ we don’t believe in trying to completely eliminate emotion from the Mediation process‚ even if it was possible.

• How Can I Sit Across The Table And Negotiate When I’m So Angry?

  • You aren’t alone in feeling this way! Divorce is steeped in emotion. Some Mediators try to look beyond emotion as if it weren’t an integral part of the relationship to your dispute. Some believe that a refusal to acknowledge emotion will somehow force highly emotional parties into logical and cooperative thinking so they can settle their issues. We believe this approach to Mediation is a mistake.
    
    We believe emotions are authentic expressions of feelings‚ which a trained Mediator can reflect and redirect to help their clients’ reach an agreement and settle their Divorce. We insure that our Mediation sessions provide a safe environment for the expression of emotions without threatening the equanimity of either party.

• Can A Mediator Really Remain Impartial To Both Sides?

  • Impartiality and patience are tenets of the Mediation profession. Without it there can be no trust in the Mediator and in turn‚ the Mediation process. Mediators are trained to be impartial and have no agenda except to give you both every opportunity to reach an equitable‚ fair agreement if that is what you both really want‚ in spite of the tense moments and emotional flare–ups that do occur from time to time during Mediation sessions.

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Vindication: Are You Seeking A Solution To Get Out Of An Unhappy Marriage or Crusading For A Cause?

By their very nature‚ two parties in any dispute believe they have a legitimate claim‚ and this is especially true in a Divorce. There are times‚ however‚ when one or both of the parties’ relationship to the conflict runs much deeper. Hurt and anger turns them into crusaders for justice on a mission to destroy one another. Oh‚ they still want to settle their Divorce‚ but this runs a distant second to their need for vindication.

Crusaders are better served by Attorneys waging war on their spouse with litigation than they will be by Mediation.

But…

This is not because they are more likely to find the vindication they’re hell bent on getting from a Judge’s ruling‚ but because they will definitely not find it using Mediation.

Mediation is a problem solving process. It’s goal is a fair‚ mutually agreeable settlement‚ not laying blame‚ guilt or punishment‚ whether financial or emotional‚ on either party.

To those who are consumed with the need for vindication due to anger or hurt‚ no Mediated settlement will ever be sufficient. Unfortunately for such people‚ their actual chances of getting what they so badly want from a Judge’s ruling are barely any greater using litigation. Just far more costly in time, money and aggravation.

A Judge's ruling, so much of which is already predetermined by State guidelines anyway, or… Surprise! Negotiation or compromise between the parties are unlikely to leave either the husband or the wife feeling vindicated. What’s far more likely is that both parties will feel equally resentful at the price they've both had to pay to reach an unsatisfying outcome.

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• Divorce Mediation
• How Divorce Mediation Works
• Why Divorce Mediation Works
• Mediation In High Conflict Divorce