Tips and Strategies for Mediation in High-Conflict Divorce Cases

A high-conflict divorce occurs when a couple is unable to see eye-to-eye at any given point in their divorce matter. Negative behaviors can manifest during this process, which can both hinder the proceedings and inflict emotional pain on the other party.

This often results from high-conflict personalities, a non-amicable separation, or simply parties acting on extreme emotions and behaviors. These destructive behaviors often result in a contested divorce.  

What Is a “High-Conflict” Divorce?

Although most divorce cases involve some level of disagreement, a high-conflict divorce is governed primarily through emotion which makes the eventual resolution of a case difficult, increasing the cost and length of the divorce process.

It is important to identify, at the outset of a case, whether you are involved in a high-conflict divorce or not. Then it is time to evaluate your options and the best course of action for a successful resolution. This will ensure you have the right tools to navigate the process once it is clear one party has become contentious about the divorce.

The reason for this may be a continuum of the relationship itself, or it could be due to factors such as emotional abuse, physical abuse, or deception that was present throughout the relationship and is being carried over into the divorce process. Regardless of the reason, it may prove difficult to resolve a high-conflict divorce in an equitable or efficient manner without proper representation. 

Mediation and High-Conflict Divorce 

If your divorce is high-conflict, prior to initiating costly litigation, it is important to evaluate all options available to you for the resolution of your case, including mediation. This confidential out-of-court process can work even for the messiest of high-conflict divorces, as it mitigates conflict and litigation by involving a neutral third party. A skilled attorney mediator can help both parties de-escalate emotionally charged situations and improve communication skills between them, giving way to settlement and decreased litigation. 

No matter what the dynamics are between a high-conflict couple, a skilled mediator can work with the existing personalities and move the case forward. Additionally, a mediator can build a team of professionals around the mediation process to help fuel a successful out-of-court mediation. This may include hiring a parenting coordinator to deal with custody and visitation issues, a forensic accountant to prepare marital balance sheets, or a consulting divorce attorney to provide independent legal advice.  

The Benefits of Divorce Mediation

An attorney mediator is hired jointly by both parties, potentially reducing the overall costs of the divorce. This is unlike a contested divorce wherein each party hires their own lawyers — leading to increased  costs and time spent in court. Through mediation, both parties can:

• Have their voices heard.
• Take control of the process. 
• Actively work toward a resolution of the case.
• Construct their own creative agreements. 

Out of all couples that pursue mediation to avoid litigation, nearly 80% of them succeed in resolving their case amicably.

An attorney mediator can assist the parties in the resolution of all issues including child custody and visitation, child and spousal support, division of assets and more. In mediation, rather than having a judge make these decisions, the parties can address these issues directly and draft their own agreements.

If the parties are unable to reach an agreement, the mediator can then bring in neutral professionals who will provide independent information to assist each spouse in making reasonable decisions consistent with orders a court may make.  

For example, if one or both parties are struggling over financial issues, a forensic accountant or financial neutral can help review information and documents to provide the parties with a report on issues such as income available for support, separate property tracings, and business valuations. The report itself will assess the financial positions of each party and aid in reaching an agreement for support, division of assets, and so on. 

Often a very-high conflict couple will find coming to an agreement on “hot button” issues like support can be very challenging. A financial neutral, such as a forensic accountant, can be brought in to evaluate and explain their findings to both parties, make revisions as needed and offer a clear path toward an agreement without costly litigation.

By using tools outside of the normal divorce process, the mediator can assist high-conflict clients in exploring more options for the resolution of their case. Often for trial, the parties will each hire their own forensic accountants and the court may even appoint a neutral expert. In this scenario, the parties are paying for three separate forensic accountants to do the same job.

Divorce Mediation and Child Custody Agreements

As mentioned before, neutral professionals can assist the parties in reaching agreements regarding complex child custody issues and can help high-conflict parents who cannot agree on a parenting plan.

In mediation, parties can work with co-parenting coaches, recommending counselors, parenting coordinators or other child experts to bring forth a child focused resolution. The expert can work with the parents either jointly or independently and, where appropriate, the expert can meet with the children and observe them with their parents, often bringing solutions to the table that the parents had not considered. 

The mediation process can often expedite agreements on a parenting plan or custody agreement since California courts are experiencing a backlog in availability. Additionally, a custody expert can continue beyond the mediation process, offering assistance when issues arise in the enforcement or application of a parenting plan or when modifications need to be made due to changes in the family structure.

Ultimately, the mediation process offers a safe arena for high-conflict parents to focus on the best interest of their children as opposed to placing their children at the forefront of litigation.

Signs Mediation Might Not Work for Your High-Conflict Divorce

While high-conflict cases can be resolved through mediation, it is important to understand the limitations of the mediator and the process.  

A case may not be a good fit for mediation if:

• One or both spouses are attempting to hide assets.
• There are signs of duress on one or both parties.
• There have been threats of physical harm or abuse.
• There is unwillingness to discuss the separation in a serious manner.
• There is a high prioritization on minimizing divorce costs.
• There are serious addiction issues.
• There is an unwillingness to compromise.

If your case involves one or more of the above factors, litigation may be needed on some level. The mediation process is not “all or nothing.” Some issues in your divorce case can be resolved in mediation, while others are handled inside the courtroom.

Therefore, mediation can still be successful even if it only results in a partial agreement as this still decreases the amount of time and cost that will be spent in court disputing the remaining issues. 

5 Best Strategies for Using Mediation to Avoid Litigation in High-Conflict Divorce

To make mediation as successful as possible, the following tips and divorce strategies should be considered. First, using a pre-mediation consulting lawyer is essential. They will prepare you for the process and how to advocate for yourself to resolve the issues in your case.

Next, you should get educated on all the mediation models available and pick the one that will best support your high-conflict case.

Finally, rely on facts of the case rather than the feelings or opinions of third parties. This will help decrease the emotionality of the case and keep all parties on track toward resolution.

It is important to remember that what happens in mediation stays in mediation — it is a confidential process so the better you prepare in advance, the better chances you have of reaching a final agreement.   

Consider Mediation Consulting/Coaching

Before and during the mediation process, it is essential for each party to have a consulting attorney. Through your consulting attorney, you can educate yourself prior to mediation on what the law says and how it will apply it to your unique set of circumstances.

You can communicate with your consulting lawyer at any time during the mediation process, especially before finalizing agreements. This will allow you to confirm your understanding of the agreements and be notified of any red flags or missing information prior to signing.

Further, a consulting attorney can attend mediation with you and become your advocate within the mediation process. In high-conflict divorces, the more support you have, the better suited you are for success in finalizing your divorce.

Don’t Discuss the Mediation Outside of Your Sessions

In high-conflict divorces, unproductive communication tends to be the leading cause of conflict. This may be tied to custody and visitation issues, financial issues, or just continued conflict from the relationship.

As a result, it is best to leave important discussions to the mediation process. For parents who need support communicating outside of mediation on a day-to-day basis, there are co-parenting apps that can create a neutral space to communicate and should be implemented sooner rather than later so as not to derail the process. 

Have Separate Sessions with Your Mediator

A skilled attorney mediator will see and understand when discussions are not progressing.  When this occurs there are many strategies that can be considered. These include breaking out in separate sessions and meeting one-on-one with the mediator as well as relying on shuttle communications via the mediator.

It is common for emotions to take over in high-conflict cases, or for the mediation process to reflect the dynamics of the marriage. Thus, meeting with the mediator separately can remove the conflict and emotions of the matter, leading to positive solutions.

Designate a Highly Structured Mediation Model

When interviewing mediators, it is important to assess what skills they have. How will they structure and run their mediation? There are many different models and options for mediation, and it is important to find the right process for you to ensure success.

In a high-conflict divorce it is essential to choose the right mediator who will provide you with the best model for your particular case. This will eliminate wasting time and unnecessary costs going through mediation. However, if you find that the model you chose is not working for your high-conflict case, you will end up needing court intervention.

Focus on the Facts in Your Mediation

As stated previously, it is essential to focus and rely on the facts of your case, instead of your opinions or the opinions of others you have talked to. Your personal issues with the other party and the problems that led to the dissolution of the marriage will not be considered in Family Court.

In fact, courts always base their decisions on the facts of a case, as applied to the law, therefore the same will apply in mediation. Your mediator will not only educate you on California law, but they will also assist you in looking for relevant facts that will aid in resolving conflict and reaching agreements.

Ultimately, high-conflict divorces can be successful through mediation with an understanding that one’s opinion is not going to be determinative of the entire process. 

Trust the Divorce & Mediation Attorneys at Cage & Miles

Through mediation, you can keep your matter confidential and out of court. Statistics show that those who create their own resolutions are more likely to follow through with their agreements than when ordered by a court. While not every high-conflict case is suited for mediation, there are certainly a number of successful models for mediation that just might fit your current situation.

Here at Cage & Miles, LLP we have a dedicated team of California mediation attorneys who understand the benefits of mediation in high-conflict cases and have the tools necessary to assist in the resolution of your matter. Call TODAY to obtain information on our mediation models and discuss your options. 858-258-5766