One of the primary aims of mediation in divorce is to collaboratively reach an agreement in one or more areas of your divorce while keeping family relationships as intact as possible. (Other motivations may include decreased cost, customized process and outcomes, and decreased stress.) During the mediation process, individuals work with a trained, neutral third party to negotiate issues such as distribution of assets, alimony, child support, or child custody—rather than letting a judge make these life-changing decisions for you.
But is mediation appropriate for all types of divorces? It’s a common question, especially among couples who feel mired in a high-conflict divorce. These divorces are often marked by combative behavior and an inability to compromise, characteristics that are typically at odds with the goals of mediation.
This doesn’t necessarily mean that mediation is out of the question, though.
Mediation can be a good option if you feel stuck in a cycle of unproductive, negative interactions with your soon-to-be ex. However, it’s important to carefully assess your unique situation with your attorney so you can determine the right strategy to suit your needs.
There is no strict legal definition of a high-conflict divorce, but it generally refers to cases where the divorcing couple has significant disagreements that they are unable to resolve amicably.
Some common characteristics of high-conflict divorces include:
These behaviors may be exhibited by one or both parties. Moreover, high-conflict divorces may also involve contentious issues such as child custody or spousal support. In some cases, there may be a history of substance abuse, mental illness, or domestic violence in these relationships.
Often, divorcing spouses consider mediation as a way to save time and money. Still, while that can be the case for some, these aren’t necessarily the most important benefits of mediation.
Mediation can be a more future- and goal-focused way to resolve a high-conflict divorce, as well as a meaningful step towards a less stressful experience during this time. Consider the following benefits.
When a divorce goes through the courts, the details of your divorce become part of the public record. The prospect of personal allegations or financial details coming to light can increase the temperature of interactions, especially if one or both parties are involved in high-profile professional or community activities.
However, in mediation, the proceedings are private and confidential. The final outcome may become a public court order, but all conversations leading up to it are confidential, which can lower stress on both sides and allow for negotiations to take place with less pressure.
In court, a judge determines the outcome of your settlement, and whatever the judge decides is legally binding. Parties have little flexibility within these decisions. For instance, if child custody is on the table, the judge will interpret the information you provide about your family dynamics, but their decision will almost always inherently be less tailored to your schedules, priorities, and needs.
In mediation, you and your former partner can create an agreement that better fits your family’s needs rather than relying on a judge’s discretion and legal standards. Continuing with the example of child custody, mediating a child custody arrangement would allow you and your soon-to-be ex to set up a parenting time plan that reflects unique aspects of your family, such as non-traditional work schedules.
One of the key reasons why mediation can be highly effective in high-conflict divorces is its ability to encourage parties to consider the bigger picture. Through mediation, progress cannot be made unless agreements are reached.
By fostering a constructive dialogue, mediation encourages both parties to move past their differences. For example, a couple may have disagreements over the division of joint property. Instead of getting stuck in discussions about past contributions, the mediator can guide the conversation towards the future, helping each party to see the benefits of a particular course of action, such as the sale of the property and an even division of profits.
Research indicates that exposure to parental conflict has a more negative impact on children than parental separation.
Just as mediation is often less stressful for the parents, it also tends to lead to less conflict outside the mediation room, which can make the process easier on children. Children benefit from mediation because it allows for:
These qualities, ideally, can carry over into your co-parenting relationship once your divorce is finalized. While all parties need time to heal following a divorce, mediation typically creates less damage for all involved.
Although the benefits of mediation in high-conflict divorces are important, there are several factors to consider before moving forward. If the following circumstances are at play, openly discuss your options with your attorney.
If one party suffers from a personality disorder, it’s important that your mediator has experience facilitating divorces under similar circumstances—and that your divorce attorney does, too.
With high-conflict personalities, creating the right structure during mediation is key. An experienced divorce attorney can advocate on your behalf for safeguards, timeframes, and consequences. While a mediator can’t necessarily enforce these measures, decisions filed from mediation are legally binding, and breaking agreements have serious legal consequences.
Keep in mind that some disorders, like narcissistic personality disorder (NPD), can make divorce a more complex and nuanced process, and mediation may not be the right option. Candidly discuss this possibility with your attorney so they can help guide you to the right strategy.
If there is a history of domestic violence, there may be an imbalance of power in divorce cases. This power imbalance can complicate the mediation process, which requires collaboration and compromise from both parties.
Questions to consider include:
Each divorce is highly fact-specific, and the merits of mediation depend on your individual circumstances. If you’re uncertain about the answer to any of these questions, discuss them with your attorney.
When deciding whether litigation or mediation is the right approach for your divorce, it’s essential to keep in mind that you have the flexibility to switch between the two. For example, you can start with litigation and then move to mediation, or vice versa.
It’s also worth noting that in New Jersey, the court system prioritizes attempts to resolve disputes amicably before proceeding to trial. Therefore, even if you choose to litigate, you still have the option to resolve one or more aspects of your divorce through mediation.
High-conflict divorces can feel like a heavy emotional and logistical lift, but with the right attorney, you can evaluate your options with clarity.
Look for an attorney who has experience not just with divorce and divorce mediation, but with navigating the complexities of high-conflict divorce and toxic personalities. This experience will help them apply creativity and legal strategy to your specific situation.
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