Mediation Vs. Litigation for the Heated Divorce

It is wrongly assumed by many that the only way to resolve a “heated” high-conflict case is to go to court.  Although this may be true in certain cases, mediation often presents far better ways to resolve the high-conflict divorce issues than litigation.

Mediation presents a better alternative because it offers a non-adversarial setting.  In a “high-net-worth” divorce there is so much information that it’s not practical to rely on the court to resolve every issue.  Every time the parties go to court they are further polarizing themselves and their chances of settling become progressively smaller.

Conflict is in mediation too, but a good mediator is able to combine all the individual issues into a single goal of producing a settlement agreement.  A good mediator must have specific skills, including being non-confrontational, knowing when to stop the parties if they focus on real or perceived wrongs done to them, and knowing ways of asking questions to help the parties problem-solve.  The mediator remains impartial, never taking sides with one of the parties.


Working Through Hostility

 High-conflict divorces usually involve two people with deeply embedded hostility toward each other, and whose reaction to the stress is often attack.  Working through litigation can develop layers upon layers of conflict and mistrust.  The resulting negative relationship often makes it so that the spouses are unable to trust each other enough to agree to anything. The mediator must take extra time with two high-conflict individuals as the clients need to know they are being fully heard and have the time to completely unload all their animosity.  The clients need to get their anger validated and their aggression deflated before they can move towards resolution.

In order to make progress toward resolution, the mediator can look for leverage to persuade each party to bring his or her “best self” to the table.  Once the clients realize they have something to lose, be it a pending court date or the possibility of foreclosure, etc. they are more likely to begin focusing on the bigger picture rather than continuing to attack each other.  If one of the parties is generating most or all of the conflict, the mediator can engage them by asking what it is they don’t like about the situation and give him or her the chance to say what they would like done differently.  This is an effective way to get them to communicate and work toward a resolution.


Changing a Hostile Client’s Perspective

 A hostile/high conflict individual can often benefit from counseling, however it can be challenging to convince them to participate.  Counseling can help them consider alternative to their contentious attitude and even motivate them to achieve a resolution, as well as help them cope with the divorce.

The easiest way to convince separated or divorced parents to seek counseling is to emphasize the protection of their children as a goal.  They find that seeing how the hostile situation can hurt their children provides the parents with a higher objective and discourages them from continuing to attack each other.  Many don’t realize that everything they do to their ex-spouse affects the children, so the mediator will help them recognize that their negative conflict carries right down to their children.  Once they realize the full impact of their hostility and poor communication skills, they are usually more willing to agree to therapy.   The mediator will remind the clients that any pain they inflict on their ex will be felt by their children as well.  For most people hearing that they may be harming their children usually helps them control their desire for revenge and access their higher selves.

In most cases, the problem isn’t that these difficult clients are “bad people” or “bad parents”: they usually just have more limited coping skills.  With the help of the mediator, and perhaps also counseling, they can adjust their perspective in order to work cooperatively for the good of their family.

At Fingerlakes Mediation, our practice acts works with all interested parties to bring an unbiased perspective to heated divorce and other marital cases. We can be reached at 585-750-6530 or online at