There is a perception that divorce mediation only works for couples who are amicable with each other.  The thought is that those who are in high conflict with each other are better served with going through the court system to resolve their cases.  However, in my experience, this is untrue.  You do not have to be friendly with your spouse in order for mediation to be successful.  In fact, in many situations, mediation works far better than the court system would for those who are in high conflict.  Here are multiple reasons why mediation is more effective than litigation for resolving high conflict divorces:

  1. Mediation forces people, even individuals who disagree vehemently with their spouse, to communicate with each other.  In courtroom litigation, communication is often controlled by the attorneys and judges and parties may not be able to properly express their wishes.
  2. Litigation often allows one or both parties to hide behind their attorneys, who control the flow of information between the parties.  This can create a situation where there is a significant lack of communication.  Someone who is passive/aggressive, or who is trying to avoid dealing with the divorce, can simply freeze out another party by using their attorney to stall the process or ignore the other side, delaying settlement/resolution of the case.
  3. Mediation requires spouses to openly express themselves, communicate their needs, wishes, and frustrations.  Courts typically do not allow for this. Testimony and evidence is strictly controlled by the Court and the attorneys.
  4. A skilled mediator can listen to the parties, who may be emotional and in a position of conflict, and objectively guide the communications with the goal of lowering the tensions/de-escalating the emotions.
  5. In litigation, the tensions/emotions become heightened the more frequently the parties have to go to court or as they face a contested hearing/trial.  Attorneys may write things about the other party in pleadings that a party believes are highly objectionable/false, causing anger and heightened emotions.
  6. In Mediation, if tensions become heightened or things get emotional, the mediator can separate the parties and speak individually between them to make sure issues are communicated properly and without anger.
  7. The adversarial court system promotes conflict which can escalate an already high conflict case to an almost uncontrollable situation, with even what may appear on the outside to be trivial or minor issues becoming “emergencies” requiring the attention of a judge.
  8. A skilled mediator, who can detect a high conflict situation, is able to employ techniques and mechanisms in mediation to reduce the conflict and help the parties understand that resolving their divorce does not necessarily mean that they have to view the process as an adversarial one.  The mediator should be working extremely hard to get people to understand that the marriage did not work out, it is o’k to be hurt, frustrated, and/or angry with each other, but that should not cause them to fall into further dysfunction by allowing their divorce to spiral out of control into years of litigation.  The goal is to figure out to resolve the issues in the case and bring the parties to a settlement that works so that they can begin to move forward with the life after divorce in a positive fashion.