A high conflict divorce is a situation where a divorcing couple has high levels of anger, resentment and conflict, to the point where it can make the following extremely difficult:
*Communicating with each other.
*Trusting one another.
*Being amicable in front of the children.
A high-conflict divorce can be emotionally draining, it can cause the divorcing couple to make bad decisions (and for the wrong reasons), it can be financially difficult and it can impact the children.
That said, sometimes a high-conflict divorce is unavoidable, meaning you want to be amicable, but your spouse does not. Perhaps you feel you are divorcing someone who is irrational or abusive, or someone who has a mental health issue or addiction. Maybe things have been done in the past that make you feel so wronged, that you feel unable to discuss anything (or even look at the person).
Many people assume that if you are in a high conflict divorce, divorce litigation is necessary, and the only way to move forward with the divorce. I respectfully disagree; I have been a divorce mediator for over 20 years, and during those years I have mediated dozens of high conflict divorce cases. In other words, mediation can still be an option in a high conflict divorce, and it can be very, very effective.
In order to help you better understand the mediation process for a high conflict divorce, here is a snapshot of the process:
1. The Screening Process
I typically meet with each party individually in order to understand each party’s needs and interests, learn about communication style during the marriage, and understand where there was conflict and where there was agreement during the marriage. Was there any physical or emotional abuse and what does that mean? The screening process can help determine if mediation is appropriate for the couple.
2. Managing the case during mediation
a. Is the case appropriate for attorney-assisted mediation?
* In attorney-assisted mediation, the attorneys are present throughout the mediation process.
* The attorneys and the clients may all attend a joint mediation session or I may meet with each client and their respective attorney separately or I may meet collectively with both attorneys or I may meet with each attorney independently with or without the client.
*There are many different options for attorney-assisted mediation.
b. How does shuttle mediation work?
* The parties and/or their respective attorneys can be in different rooms
* I can meet with the attorneys in one room and each of the parties in different rooms
* I can shuttle between the individuals or groups in different rooms
* This works well via Zoom or in person
c. Are the parties able to participate without their attorneys present?
* Each party can be in their own room and I can shuttle back and forth between the two parties.
* Whether Zoom or in person the parties can participate via shuttle
* Many couples are able to participate via Zoom by being on the screen together or are able to be together if meeting in person
* Zoom has opened up many more opportunities for high conflict couples
i. Parties do not have to be in the same room
ii. Parties may participate via shuttle mediation
3. What are the positives of mediation in a high conflict divorce?
a. Mediation is much more Cost effective than litigation.
b. You have more Control over the process versus a judge making life decisions for you and your family. You can have a say in what your post-divorce life is going to look like. This includes parenting time, financials, living situations, and more.
c. The process is Confidential. Your disclosures do not become public record. This is one of the reasons high net-worth couples often choose divorce mediation.
d. The parties and the mediator are able to come up with Creative The solutions are custom to fit the couple’s lifestyles and the children’s best interests.
e. Mediation allows parties to learn better ways to Communicate with one another. Believe it or not, mediation teaches couples how to get along and co-parent long after the divorce. In a mediated divorce, couples are more likely to follow the marital settlement agreements and parenting agreements because they were able to craft the agreement that worked best for them.
f. Mediation is more Time With Covid and the courts being on Zoom, litigated divorces are taking even longer to resolve.
g. Mediation provides a forum for each party to set aside anger and work toward a resolution that will benefit their entire family.
In closing, a high conflict divorce is never easy. Mediation is an opportunity for the divorcing parties to work together for the benefit of their entire family, learn how to communicate as co-parents and walk away feeling like they had input in their post-divorce life.
I am here to help if you’d like a complimentary consultation.
Marjorie Jacobs is a certified mediator for the Center for Conflict Resolution (CCR) in their volunteer mediation program as well as an appointed mediator for the Circuit Court of Cook County, Illinois and Lake County, Illinois. She has taken multiple mediation training courses through both the Center for Conflict Resolution and the Mediation Training and Consultation Institute. Marjorie is a member of The Mediation Council of Illinois and the both the Chicago Bar Association and the Illinois Bar Association.
Marjorie is a graduate of Washington University School of Law and Washington University School of Medicine’s Health Administration Program. She received her B.A. from Sophie Newcomb College of Tulane University. Her legal experience includes a corporate health care practice at Katten Muchin and Zavis (Chicago) and Altheimer & Gray (Chicago).
Marjorie also served as Assistant General Counsel and subsequently Director of Strategic Development for the American Hospital Association (AHA). While at the AHA she directed a national task force comprised of ADR experts in health care. Marjorie is the co-author of Managing Conflict In Health Care Organizations and has spoken to numerous audiences on the virtues of developing internal ADR programs.Marjorie serves as a member of the Tulane University School of Liberal Arts Director’s Advisory Council Board.
If you want to learn more about Marjorie and her team, visit her website.
Like this article? Check out, “12 Truths & Myths about Mediation”
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