Mediation in a High-Conflict Divorce

A high-conflict divorce – one in which emotions run high and you can’t seem to see eye-to-eye on anything – can still be mediated. In fact, if you are not getting along at all, mediation may be an excellent choice as it will keep your legal bills in check. When emotions run high and both spouses “lawyer up” to divorce, you can end up unnecessarily fighting over every detail just to win. This can get expensive.  

Additionally, if you have children, mediation can help you learn how to work with and even negotiate with one another, establishing a baseline of peace. This alone will be of great benefit to your family.  

To effectively use mediation to negotiate your high-conflict divorce, you and your spouse will need to agree on these basic things: 

1. You want to keep your divorce private. If it goes to court it becomes public record and anyone at all can read about your private lives.
2. You want the divorce to be settled quickly so that you can move on. Mediation usually involves up to four sessions over 3-4 months, while a court divorce can take years.
3. You want to save money. Mediation is the least expensive option for divorce because there are only a few sessions and there is generally only the mediator to pay.
4. You will have to compromise. In order to keep your divorce quiet, settle quickly, and save money, you are going to have to be willing to compromise on strongly held positions. There’s no way to avoid it. 

If you can agree on the first three points but are afraid you won’t be able to manage the fourth point easily, we recommend collaborative law as a divorce option. In collaborative law, you will each have a lawyer to help guide you through the negotiation process. Everyone signs an agreement to keep the divorce out of court, so there is an incentive for the lawyers to reach a settlement, but they are still working for your interests. 

Collaboration is more expensive since you are paying more people, but is still usually resolved relatively quickly. However, collaborative law doesn’t free you from the need to compromise. It just gives you a lawyer to help you make those decisions.                                       

Negotiation techniques in mediation

To negotiate effectively, you will need to be prepared. As a divorce mediator, I provide clients with guidance on what steps to take before the first negotiation session. For instance:

• List all assets, their values, and their marital asset status. This includes both hard assets, such as the house, car, and furniture, as well as financial assets, such as a family business, cash, stocks, pensions, IRAs, and 401Ks.
• List all shared debts and expenses, the division of which will also need to be agreed upon.
• Classify everything into three categories: non-negotiable, important but could be negotiated, and negotiable. This includes everything from assets to circumstances: the family home, custody or visitation rights, not moving outside a given distance to stay close to family, etc.
• Consider what you believe would be non-negotiables for your spouse and what he or she is likely to be willing to negotiate.
• Plan some bargaining chips ahead of time. Knowing what is important to your spouse, what are you willing to offer in exchange?
• Consider what, if anything, both of you will consider “non-negotiable.” In the end, one of you will have to compromise. You can’t both get your family home. If there are two things you both want, consider splitting them – you get one thing, your spouse gets the other thing. If they are of different value, something else will probably have to be offered along with the less-valuable item.
• Create a detailed list of your income and your family expenses. How will they likely change after the divorce? How much help do you think you’ll need in child support or how much will you be able to pay?
• Prepare emotionally so that you will be able to keep strong emotions under control. This is not the time to rehash old arguments and bring up old hurt feelings. This is the time to settle on an agreement that will allow you both to leave those old emotions behind and start anew with your own separate lives. So remain professional and as neutral as possible during the process.
• Consider a strategy to stay calm if your soon-to-be ex pushes your buttons. Preparation is key to avoiding emotionally-charged responses. 

This sort of preparation will make the sessions extremely efficient and worthwhile. When you come to the negotiating table with a list of all your assets, debts, desires, and expectations, you’ve considered how important each is to you, and you’ve considered what is probably important to your spouse, we are ready to begin the challenging part: finding common ground. 

Reaching a settlement in a high-conflict divorce

Settle smaller issues first. This will create a positive atmosphere and a foundation of cooperation. Once several items have been resolved, airing the non-negotiable items at this point might be a good strategy, because if none of your non-negotiables conflict, you have avoided the biggest obstacle, and this deepens a spirit of cooperation. If, however, you both want the house or you both want primary custody, you can look at the less important items that have not yet been settled as possible bargaining tools.

Present your preferences in as diplomatic a manner as possible. Instead of saying “I get the house!” say, “Since the children will be staying with me, it would be better for them if they stayed at their current school and in their current home. They need stability. This will limit the impact the divorce has on them as much as possible.” Practice ahead of time so you can speak calmly, and consider how your spouse is likely to respond so that you will be ready with some answers and suggestions.

I have seen many couples who thought they could not agree on anything engage in successful mediation. As an experienced divorce mediator, I guide my clients through the process, empowering them to decide their futures rather than depending on a judge to decide their fate. Reach out to our Doylestown, Bucks County office at (215) 345-5259 to see how we can help you, too.