High Conflict Couples and Resistance Towards Mediation

Recently, I had an interview with Bill Eddy on my radio show Dialogue on Divorce. Bill discussed the changing path Divorce Mediation has taken in the last 10 years, particularly as it affects high-conflict couples, Bill’s area of expertise. Before then, mediation was really just people who were motivated.  They were civil.  They wanted to do it out of word and they were able to talk and listen respectfully in all of that.  The courts have really pushed a shift at this point.  The courts are now saying you should go to mediation first regardless of who you are.  It’s part of often court procedures or requirements so that mediators are getting people who sometimes don’t want to be there, who sometimes are just using mediation, just going through the motions because they really want to go to court.  Additionally, you have some people who will figure they can bully their partner in mediation and it gives them a better deal than the court would.

These are concerns that Bill thinks can be addressed in the process.  First of all, he might screen clients a week or two before the mediation with some individual interview for each party. He calls this a pre-mediation coaching because he doesn’t want to put people under pressure and feel like they are being scrutinized.  Bill has been trained in screening for domestic violence, which is becoming a requirement in some jurisdictions.  He has the ability to ask meaningful questions, such as whether the person feels that they can make decisions while the other person is in the room.  Do they feel like they have a good enough backup in terms of a lawyer to consult with, a financial person, even a parenting plan person, like a counselor or a coach who they can talk to about parenting plan so that the person feels that it is a safe place to negotiate, that they feel physically safe with that person.

If they do have concerns or there is some history of physical violence, can the process have safety measures put in place?  Bill is now doing some mediations where people actually start out with a restraining order and during his pre-mediation coaching, he find out if he can meet with them together in the same room, which has to be an exception to the restraining order. Alternately, safety measures can be put in place so the mediator can have them in the building at the same time, but go back and forth between separate rooms so they’re never together, or even to do the mediation over the phone so that they’re not even in the same location.  They may not even know where each other is calling in.

With those protections available, even high-conflict couples can make reasonable agreements, some including supervised visitation, restraining orders, et cetera.  These methods show people that they are respected in that process, they’re listened to, they’re not treated as bad people and they’re not pressured.  These are huge benefits of mediation, so long as you have these protections.

These methods can also work in Collaborative Divorce, during which each party has a lawyer and that there may be other professionals involved, such as a child specialist, a financial specialist, et cetera and mental health professionals, possibly.  The team needs to, of course, be treating everyone with respect, even in cases where there may have been some abuse. Some collaborative groups will take cases with a restraining order if it’s already been acquired.  Similar to mediation; these cases can do better by staying out of court even if they can’t be cooperating a lot.  It can help them make these decisions and go forward in peace.

The idea with collaborative divorce, of course, is that you’re able to meet together, that people are able to learn to communicate a little bit better and collaborative is that opportunity, especially when there’s a coach involved because the coaches can be good for communication tips.  In high-conflict cases, Bill often advises that there’s a coach involved, either one or two coaches, not just the two lawyers so that parents can move forward rather than just having decisions. High-conflict people often lack some of the basic communication skills, how to write emails, how to make proposals, how to manage themselves in the decision-making, how to manage themselves emotionally.  Those are skills that can be taught by the collaborative group, or by the mediator.  For more information, check out my upcoming blog post and be sure you listen to Bill Eddy’s episode of Dialogue on Divorce: High Conflict Couples and Divorce Mediation.

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