JAMS ADR Blog by Chris Poole
A practicing mediator and retired judge explains why mediation may be a better option than litigation for high-conflict cases.
Many people wrongly assume that the only way to resolve a high-conflict case is to go to court. Although there may be certain cases that absolutely cannot be settled without court intervention, mediation and collaborative law often present much better avenues for resolving high-conflict divorce issues than litigation.
If I did not have firsthand experience in successfully mediating high-conflict cases, I might still believe that difficult divorce cases require a judge to make the final decisions. Fortunately, there are several ingredients that make it possible to resolve a high-conflict divorce through mediation. First and foremost, you need some points of leverage: the parties need to be worn out from litigating, have already spent a lot of money, and have used up much of their resources.
Mediation presents a better alternative to litigation for high-conflict and high-asset cases because it offers a non-adversarial setting. High-net-worth cases involve so much information that it’s not practical to rely on the court to resolve every issue. Each time you go to court to solve a problem, you further polarize the parties and their chances of settling become progressively smaller.
There is conflict in mediation, but the conflict is contained so it can’t be blown out of control. If you go to court, you’re lighting a match without knowing the direction of the flames. High-conflict cases involve so many assets and issues to be resolved that once something catches fire you may never regain enough control to refocus the case. On the other hand, a good mediator is able to combine all of the individual issues into the single goal of producing a settlement agreement.
Mediating a high-conflict divorce case requires specific skills, including: being non-confrontational, knowing when to stop the parties if they fixate on an injustice (real or perceived) done to them, and understanding the different ways of asking questions to help the parties problem-solve. Mediating difficult cases is somewhat intuitive – but it also requires a formulaic approach for communicating with high-conflict people.
High-conflict cases usually involve two people with deeply-embedded hostility, whose modality of dealing with stress is attack. If they engage in litigation, they’re likely to develop layers upon layers of conflict and mistrust. The result is a negative relationship in which the spouses are unable to trust each other enough to agree to anything. They become habituated to conflict to a point where they begin to seek it as a way to cope with their anxiety.
The mediator should assign extra time to a case involving two high-conflict individuals; it may take much longer than average to resolve because the clients need a forum to completely unload all of their animosity, distress, and complaints. High-conflict clients need to know they are being fully heard by the mediator and the opposing side before they can move towards resolution. Unless they get their anger validated, it is difficult to deflate their aggressive energy.
In order to make progress, the mediator must look for leverage to persuade each party to bring his or her “best self” to the table. Whether it’s a pending court date or the fact that their house is in foreclosure as a result of mounting legal fees, once the clients realize they have something to lose, they are more likely to begin focusing on the bigger picture rather than continuing to attack each other.
If one of the clients is generating most or all of the conflict, the mediator must resist the temptation to confront the difficult client head on; instead, asking what they don’t like about the situation and what they would like to see done differently can be an effective way to communicate with them. The mediator should try to engage the problem-solving side of a high-conflict client’s brain, which can break their pattern of attacking the other side or otherwise creating drama.
High-conflict individuals often benefit from counselling, but it can be challenging to convince them to participate. Counselling can help clients consider alternatives to their contentious communication style, motivate them to achieve a resolution, and help them cope with the divorce.
The easiest way to convince separated or divorced parents to seek counselling is to emphasize the protection of their children as the goal. Framing the issue from the perspective of how it can hurt their children provides parents with a higher objective and discourages them from attacking each other. Many clients don’t realize that everything they do to their ex-spouse affects the children, so divorce professionals should help them recognize that parental conflict bleeds right down to the kids. Once clients understand the full impact of their poor communication skills, they are usually more willing to agree to therapy.
After spending almost 20 years on the bench, I am all-too-familiar with the long-term damage to children in high-conflict divorce cases. I remind my clients that any pain they inflict on their ex will be felt by their children as well; if they can’t transmute the conflict, they will transfer it to the children. This may not work for clients with serious personality disorders, but for most people, hearing that they may be harming their children usually helps them to control their desire for revenge and access their higher selves.
In most cases, the problem isn’t that high-conflict clients are bad people or bad parents: they just have more limited coping skills – perhaps from their family of origin – and need help reframing their perspective in order to work cooperatively for the good of their family.
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