High-Conflict Divorce Mediation Strategies

"Before you embark on a journey of revenge, dig two graves" -- Confucius

Divorce Mediation is generally thought of as a process where a divorcing couple sits down with a mediator and negotiates a settlement face-to-face. The mediator explains principles of law, helps the parties collect and share financial information, and, when communication breaks down, helps them refocus on the issues at hand.

For people who are reasonably amicable, this process goes very well. Even for most high-conflict couples, this kind of mediation works -- though it may take a little longer. A well-trained, highly experienced mediator can help very high-conflict couples set aside for a moment the anger and pain that make them lash out at each other. The goal is to get them to focus on what is really important to them for the future. For most divorcing couples, that is emotional and financial stability for themselves and any children they might have, and an end to divorce conflict and all the negativity it tends to perpetuate.

Essentially, a professional divorce mediator can help a high-conflict couple see that they want a divorce settlement and a future more than they want to fight with each other or get revenge.

One tool I use in high-conflict divorces is to ask each party to think, every time they are about to say something cruel, whether the statement is going to move them closer to their goals and a divorce settlement -- or move everything in the other direction. I point out that married people, especially long-married people, really know how to push each other's buttons. "Quotes with a sting, quips with a sneer," as composer/lyricist Stephen Sondheim famously wrote. People we have loved and trusted are uniquely able to find the words that cut to the bone, that dredge up every fear, insecurity, and humiliation buried inside. Most people can learn, and practice restraint before such words are used.

But some simply cannot. I mediated a high-conflict divorce recently where the couple was unable to bite their tongues. At every opportunity, they made those hurtful, stinging statements, and they couldn't seem to stop themselves. The accusations cut deep -- as they were intended to. She accused him of being a failure as a provider, a father, and a husband. He accused her of being a failure as a mother and a companion. They both accused each other of selfishness, wastefulness, and treachery of all kinds. It just kept spilling out. At every crucial juncture where a divorce settlement seemed close at hand, another shot would be fired, another dagger plunged. I can't tell you how many times I heard, "Everything is off the table. I want a judge to decide."

So I tried something a little different to diffuse the hostile negotiations. It's called "Shuttle Mediation." I asked one of them to sit in my office, and the other to go to my conference room. I "shuttled" back and forth. I told them that at least I wouldn't have to go to the gym that day -- because the two rooms were on different floors, and I had to run up and down the stairs. That forced some rueful smiles.

When they could no longer continue the dance of death that seems to have been their modus operandi, they were able to focus on what they each wanted and needed to finalize the divorce agreement (the issues left to decide were minor parenting ones). They both slowly realized how close their two positions were.

It took one 90-minute session to resolve everything and settle this high-conflict divorce case. Though Shuttle Mediation seems to belie the idea of divorce mediation being a face-to-face encounter between two parties, in this situation, separation worked. It turns out there really are people who can't be in the same room with each other (or just don't want to be). In these fairly rare cases (I've only had to do it twice in almost 27 years of divorce mediation), Shuttle Mediation may be the answer.

I wrote an article on High-Conflict Divorce that makes the point that very angry couples are the ones who need divorce mediation most, because the litigation system tends to bankrupt and eat alive such people. When mediating high-conflict couples, I use every effort to make sure that even these people can succeed at finding a resolution, including Shuttle Mediation.

If you are in the process of divorce with a hostile partner or you are not making any progress because arguments and bickering seem to dominate the negotiation process, discuss Shuttle Mediation with your mediator. It may just be the answer.

Contact Transitions Mediation Center to learn how it really can be your divorce and mediation can help you come to a mutually beneficial agreement and move forward with your life.