For many people, when they think about the typical couple who would mediate their divorce settlement, they envision a couple who gets along quite well or reasonably well, who is amicable. Maybe they don’t have too many issues that are in dispute between them. And there are certainly couples like that who go through mediation.
Then, at the other end of the spectrum, there are couples whose relationship has really deteriorated and who have an enormous amount of conflict between them, but they still prefer to mediate their divorce settlement if possible. I think for those couples, they’re often not motivated to be in a mediation process because they want to maintain the good relationship that they have, because they don’t currently have a good relationship, or they feel like they want to honor the relationship they’ve had by going through the divorce process together as more of a team. Those motivations are not present for couples whose relationship has really, really deteriorated and who have enormous conflict between them.
For those couples, as with any other couple, they’re certainly motivated to not spend money unnecessarily on their divorce process. I think many high conflict couples are motivated to be in mediation because they envision a litigation process or a court-based process being more painful than a mediation process. So, in some ways, the motivation is almost, I don’t know if it’s right to call it a negative motivation, but in some ways, the motivation is almost to avoid rather than to move toward an amicable process or a process where they both felt like they honored each other and both participated in a way that was recognizing of their history together. It can be more a motivation to avoid certain negative things like spending a ton of money or having to spend half of the day every six weeks in court.
I do want to offer a note of caution, which is that if you are very unlikely to have a successful mediation, the process of going to mediation, paying for a mediator, being in the room with your spouse can be expensive and painful, and you may be better served not going the mediation route and going more of a traditional negotiation route.
So if you find yourself in that place where you’re wondering, “My spouse and I absolutely don’t get along. I really can’t stand being in the room with them. We are very high conflict. Should I consider mediation?” I just want to offer a couple of thoughts for somebody who is in your shoes and trying to figure out whether it’s worth their while to try a mediation process to resolve their divorce.
I would say there are three principal questions that you want to ask yourself and try to answer as honestly as possible without being too invested in ultimately coming to the conclusion that you will definitely mediate your divorce.
The first question you want to ask yourself is whether you can tolerate being in the same room with your spouse as you talk through issues related to your finances and your kids. And by tolerate, I don’t mean that you can physically stay in the room and not leave while the entire time bickering with your spouse and being harsh or critical or expressing contempt for your spouse, talking in an abusive way to your spouse. What I mean by tolerate being in the same room with your spouse is to be able to be in the room with your spouse, talking through these issues in a productive way that ultimately moves you closer to agreement than it pushes you further apart and further away from agreement.
If you find that you attend one or two mediation sessions, and you really cannot help yourself but expressing the anger and spite that you may feel toward your spouse at this particular time in your relationship, it may not be productive for you to be in a mediation process because often what happens when one or both people are expressing a lot of conflict, a lot of anger toward their spouse, they end up moving themselves further apart and further away from settlement than they might have been had the same substantive message been communicated in a different way maybe by their lawyer or maybe by them in writing reviewed by their attorney. I would caution you to really ask yourself honestly. Maybe if you’ve been in couple’s therapy, you can think about how you were able, or not to participate in couple’s therapy. Ask yourself honestly if you feel able to be in the room with your spouse without interacting with them in a very harsh or critical or angry way, because if you assess that you’re not able to do that, you run the risk of shooting yourself in the foot when it comes to moving your negotiation process forward.
The one exception to that that I would offer, and I don’t personally work in this way but many mediators do and will, is if you know that you cannot be in your spouse’s presence without expressing extreme contempt for them and being really harshly critical of them and you know that about yourself, first of all, that’s great that you have that self-awareness. Second of all, you might consider looking for a mediator who is willing to meet with the two of you in separate rooms and won’t have you discussing the majority of substantive issues in the same room. That can work for some people. It also tends to have the drawback of allowing both spouses to remain more entrenched in their different positions about settlement simply because it’s a different thing to be confronted in person with the separate reality of your spouse and their interests and their preferences and their concerns than it is to have a third party relay those to you.
That’s not to say that it can’t work. Certainly, it does for many couples to mediate in separate rooms if your mediator is willing to work in that way. So if you assess that you can’t productively be in the same room with your spouse or discuss substantive topics in the same room with your spouse, you don’t necessarily have to throw mediation out the window if you can find a mediator whom you like, who is willing to work with you entirely in separate rooms. You can ask them that directly at the outset of the process or when you first reach out to their office. Sometimes that model is called caucusing or shuttle diplomacy, but the gist is just you can ask the mediator whether they’re willing to meet with you and your spouse entirely separately and not in the same room.
The other question that I think is important to ask yourself and to answer as honestly as you can with yourself at the outset of a mediation process is how willing you are, you anticipate being, to cede to your spouse’s preference in not all, but some, areas that are very important to you. It is more likely than not that you and your spouse will disagree over particular topics that are important to both of you. It’s pretty uncommon that one spouse only cares about topics A, B, and C, and the other is fine letting them have their preference in those areas, and the other spouse only cares about topics D, E, and F, and vice-versa. They can have their preference in those areas. That doesn’t happen commonly. Generally speaking, there are a few key areas, and it’s very common that you see them quite differently and you disagree on them.
In order to settle your case in mediation and also, quite frankly, in any process, including litigation because you’re still likely to settle in a litigation process and not have your case resolved by trial, you will need to be able to accept deferring to your spouse’s preference, or if not entirely deferring, far more than you would like or be comfortable with, in some, but not necessarily all, areas of your negotiation. If you cannot fathom doing that, really of your own free will cannot envision ever being willing to compromise in certain areas, you want to be realistic with yourself that mediation may not work for you. Some people are very clear about that unwillingness on their part from the beginning.
To take one example, some people feel extremely strongly about not paying their spouse spousal maintenance or alimony and they feel so strongly that they’re clear that, although they know that if they went to court they would likely be ordered by a judge if they went all the way to trial or even just by virtue of an interim motion, they would likely be ordered to pay their spouse spousal maintenance, but they may feel very clearly that unless an officer of the court orders them to pay spousal maintenance, they will never be willing to do it voluntarily. They will never voluntarily agree to do it in their settlement agreement. That may work for your spouse. It may not. I would put that up for myself as a red flag. If you feel that way about fundamental issues in your divorce negotiation that are also important to your spouse, mediation may not be the best use of your time. It may be more useful to have some initial motion practice in a litigated case, see more or less where the court is going to fall, and then accept that and negotiate based on that.
You just want to be honest with yourself about what you’re willing to do and about the fact that compromising to reach a settlement, if you’re in a really high conflict relationship or a really high animosity relationship, compromising on any of these points is really going to feel pretty terrible. It’s not going to feel comfortable or like it’s a reasonable compromise or that it makes any sense in the context of your relationship, and that’s because in a really high animosity and high conflict couple, you have such different understandings and versions of the history of your relationship and of each person’s contributions to the relationship and to the demise of the relationship that your sense of what is within the range of the reasonable is going to be so far from what your spouse’s sense is that coming to compromise with them is just going to feel extraordinarily uncomfortable.
So, you just want to be honest with yourself about whether or not you feel able to and motivated to make that kind of uncomfortable compromise or whether it would be more helpful to you and more productive to have the litmus test to get initial feedback from the court on roughly where they think they would go on the key issues in your case. Often, that’s done through some kind of interim motion practice and/or more informally through case conferences with the court attorney or the judge. Maybe that’s going to be more productive for you to get that sense and then to be able to negotiate based off of that reality.
The final question I would ask myself if I found myself in a really high conflict, high animosity relationship and I wanted to do mediation is whether I stood to lose a lot from going to court and going to litigation because I think by virtue of the fact that, first of all, being in the room together is going to be painful, and second of all, compromising to the degree you will need to will also be extraordinarily painful because it will feel like it goes so far beyond what’s fair or reasonable. For mediation to work, you almost have to have the option of litigation be so bad for you in your particular situation that it serves as a very strong negative motivation for figuring it out one way or another in a mediation process.
It goes without saying that I’ve framed each of these questions as questions you should ask yourself about yourself, but you should also be asking yourself these questions about your spouse as well. Are they able to productively be in the same room with you? Are they able to make compromises, accept compromises that feel very unfair to them in service of reaching some kind of settlement to be able to conclude your divorce negotiation process? Do they stand to lose a lot by going to court? That may be in terms of their time and resources and/or in terms of attorney’s fees spent. But you both have to have a pretty strong deterrent almost from going to litigation. If there’s no real deterrent going to litigation and the experience of mediation is going to be extraordinarily painful, you will probably end up in some form of litigation, and it may make more sense for you to start there and then to mediate perhaps the remaining issues that you haven’t been able to resolve
Another thing you want to keep in mind is that the mediation process unfolds over months and oftentimes over more than a year. The questions that I posed to you are questions that you want to ask yourself about yourself and your spouse periodically, not just at the outset of the mediation but as you get more data points about how you’re able to engage in the process and how your spouse is able to engage in the process. You want to keep checking in with yourself, and ideally, if you’re working with an outside consulting attorney, with your attorney about ,“Is this making sense? Is this process looking like it’s likely to conclude or that we have a chance of concluding it successfully because we are able to work productively in the room together to a reasonable degree, we’re able to make very difficult compromises, and we’re still strongly motivated not to litigate?” Don’t ask yourself that just once. Three months in, six months in, nine months in, keep checking in on those questions. If your answers change, your assessment of whether or not mediation makes sense for you may change as well.
To that end, I do want to make a plug. In the context of a really high conflict, high animosity divorce, it’s really useful to have an outside consulting attorney. If you’re trying to go through mediation, to have an outside attorney who understands the value of not litigating to the hilt every single issue that you’re in conflict on. When you combine a really aggressive attorney who is very, very quick to go to court on any issue with a high conflict divorce, that’s where you end up with the case that has been in the court for five years and the couple has spent a million dollars between them on attorney’s fees, which is not where anybody wants to end up.
My suggestion is if you find yourself in a really high conflict situation and you want to mediate, or you don’t, you want to find yourself an attorney who is oriented towards settlement, and then you really want to lean on and look to that person to be reality checking you throughout the process. And if you find that your attorney is telling you, “No, that’s not a reasonable position. No, that’s unlikely to happen in court. No, you’re not likely to get that,” you want to really honor that feedback. And certainly, if you have any questions, you can always go get a second opinion with another attorney. But for the most part, your attorney is going to be biased in your favor, and so their assessment is going to distort a little bit in your favor already. And so where that person, who is already slightly biased in your favor but is also quite familiar with the divorce process, is telling you, “No, that’s not a reasonable expectation. I don’t recommend that you ask for that,” or, “I recommend that you compromise on this,” you really want to heed that advice. It is in your best interest to heed that advice and to acknowledge that in particular, in a high conflict, high animosity situation, you are not likely to have a realistic sense of what a fair resolution in your case is. If you stay rooted in your own sense of what a fair resolution is and your spouse does the same, you are not likely to reach a settlement anytime soon, which of course is everyone’s goal. No one, including high conflict couples, wants to spend more time or money on their divorce process than they need to.
Even if you’re high conflict and high animosity, you may well be able to work productively in mediation, but you do want to go through the process that I’ve laid out of really thinking critically about whether it is a smart investment of your time and your money or whether you would be better served by proceeding directly to more of a formal negotiation and litigation process.