Eileen Coen Mediation
The road you take makes all the difference.

Four Strategies for Mediating a High Conflict Divorce

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Sometimes people assume that the only way to handle their divorce with a high conflict partner is to “lawyer up” and “buckle down” for the roller coaster ride.

Statistically, this approach leads to increased conflict and less satisfaction with the results. There are also enormous financial and emotional costs, which can be compounded when there are children.

In almost all cases, you can achieve a better divorce through a cooperative process rather than through a combative one. But is it possible to mediate your “high conflict divorce”? Sometimes not, but often YES. Here are some guidelines that can help:

  1. Utilize a highly structured mediation model. Choose a mediator who can offer a highly structured process. How will you know? Ask the mediator: “Can you please describe the process you use when you are working with a highly conflicted couple?” You are looking for a mediator who has experience, skills and strategies specifically designed to manage a high level of conflict. These may include: pre-mediation coaching for each party, productive use of caucus before and during mediation as needed, adherence to and management of agenda topics and a methodology to encourage clear communication and resolution.

  2. Take advantage of pre-mediation coaching. If your mediator does not provide pre-mediation coaching, consider meeting with a trained divorce coach to help prepare you for the mediation process. People who need to negotiate with a high-conflict person tend to be more successful when they (1) understand how the mediation process will work, (2) anticipate and prepare for discussing difficult topics, (3) establish helpful ways to respond to “triggers”, and (4) learn skills to manage emotions and stay focused on what is important for you and your children. It is often helpful to maintain coaching sessions throughout the mediation process.

  3. Caucus. Mediation sessions should not be opportunities to “vent.” Chances are you’ve already experienced that “reacting” and “venting” haven’t helped you and your spouse see eye to eye. A caucus (an individual meeting with the mediator) can be a helpful way to blow off steam and regain composure without doing damage to your negotiations. In caucus sessions, your mediator can coach you to communicate issues that are important to you in a way that can be heard. A caucus can provide the safe space and guidance you need to develop proposals and explore alternatives prior to discussing them with your spouse.

  4. Don’t talk about the mediation or issues between sessions. Make an agreement with your spouse that you will not discuss any issues of your divorce between mediation sessions. Drive separately to and from mediation sessions to minimize the urge to “finish” an unresolved topic. When a disagreement or misunderstanding arises between sessions, try to address the particular incident without expanding to the broader issues. Arguments can quickly escalate and unravel delicately woven agreements, undermining the mediation process.

Mediation won’t be successful for everyone. Some high conflict disputes will simply require an outsider to impose a solution. But imposed solutions are seldom adhered to and often present new obstacles in on-going high conflict. On the other hand, many people successfully mediate their divorce even though they begin the process with intense feelings of anger, hurt and distrust. A highly structured mediation process, with appropriate support, may make all the difference.

6 Comments

  1. soday says:

    Great insight on how to help a high conflict couple through a mediated divorce. This goes back to your last article of why it is so important to have a highly trained and experienced mediator. I would suggest that, if the couple needs additional support and they can’t seem to resolve their issues through mediation alone, they should look to collaborative law before they move to traditional litigation. The team approach of collaborative law often provides the couple with more intensive support and coaching to move past the “sticking points” and resolve the hard issues.

  2. naomihana says:

    Thank you for this article. It is so important that people are given avenues for resolving their conflicts outside of court. It is easy for professionals to give up on high conflict situations, but these are the people who need our help the most, so we need to strive to develop the tools and skills to be able to do so.

  3. Thank you both for your replies. I’m encouraged that there are increasing avenues and professionals dedicated to help people caught in high conflict.

  4. benstich says:

    This is a great post, Eileen, with very productive and specific suggestions to folks going preparing for or going through divorce. I’d love to hear more about how you structure your pre-mediation coaching sessions — can you talk a little bit about that?

  5. Sure, Ben. I start with a separate phone conversation with each party and explore where they anticipate challenges and what they think the triggers are for those challenges. We talk about ways to manage their emotions and behaviors so that they can have productive discussions. I may give them exercises to complete – I like Bill Eddy’s “New Ways For Families” – and find those exercises to be thought-provoking and helpful to clients. http://www.highconflictinstitute.com/books-a-products And I make sure I get their buy-in in advance to a highly structured process in which I may frequently interrupt them and actively steer the conversation – that’s quite different from the way we might mediate with couples otherwise. The pre-mediation coaching session prepares them with an understanding of their challenges and triggers and a commitment to using the tools to deal with them that they’ve gotten to discuss and practice in advance. It also establishes the parties’ expectations about how the process will work and what will be expected of them.

  6. Ben Stich says:

    Thanks Eileen. I appreciate the time you put in to explaining your practice, and more importantly to how you set the stage for success in your mediations!

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