Custody Mediation With High Conflict Couples

When your divorce seems impossible, custody mediation is still an option.

April 26, 2021

In the not too distant past, mediation for high conflict couples was viewed as inappropriate. Bullying, name-calling, and intimidation, while not allowed during the mediation process with an Orange County child custody attorney, had affected one or both spouses to the point that agreements were rarely reached. Fortunately, those times have changed.

What Is Custody Mediation?

Custody mediation consists of both parents meeting with an impartial third party known as a mediator or facilitator. Through the use of a mediator’s skilled negotiating, communication, and conflict defusing techniques, the couple comes to an agreement on child custody.

What Are the Signs of a High Conflict Couple?

By the time a couple has decided to divorce, months if not years of discord have usually left its mark. Some respond with silence, while others resort to bouts of anger. This is, unfortunately, a common occurrence for those going through a divorce.

This behavior, however, does not define a high conflict couple. Anger, blame, resentment, and fear are often the cornerstones of the relationship for these types of couples. Very often, one has considered divorce for months, if not years, before letting the other spouse know.

In these situations, one member may be the angry dominant party while the other lives in fear. Emotional manipulation has been used as a controlling mechanism. In other scenarios, both parties have escalated the lack of amicable communication until the battle lines are drawn and neither are retreating.

Typically, this argumentative communication pattern limits productive mediation. When this couple disagrees on child custody, one of the most contentious matters in a divorce settlement, the stakes are even higher and the tempers that much hotter.

Why Is Mediation Not Recommended for High Conflict Couples?

A common misconception maintains that high conflict couples are not candidates for mediation. For some couples, this is true, but for many others, mediation can be successful. As mediators and an Orange County child custody attorney, we’ve witnessed hundreds of successful mediations with high conflict couples.

A trained mediator knows what signs to look for and the steps to take to deescalate rising tension. In some cases, this may involve separating the couple for brief periods so that one doesn’t feel overwhelmed and under attack.

What Are the Problems With Litigation?

Litigation, or settling a dispute in court, can lead to increasing conflict and decreasing any lines of communication. By its nature, it is divisive and antagonistic—fueling the fire of discontent.

Each side draws the line and the battle begins with he said, she said arguments that lead to expert witnesses, public records, and more emotional wounds that are slow to heal. For a controlling spouse, a courtroom brawl can fulfill their need to loom over their divorcing spouse.

Unfortunately, children usually bear the brunt of this type of litigation. In the end, no one really wins.

Because of this recognition, more superior courts are mandating that every divorce case attempt mediation first before litigation regardless of temperaments and history.

The problems with litigation are many. Here are just a few:

  • Loss of Control. Once a divorce reaches the courts, a judge will decide what is in the best interest of the children, how to split the assets and debts, and if alimony is a consideration. In mediation, the spouses make all the decisions that will affect their family for years to come.
  • Hard on the Children. Divorce is one of the most stressful life events, right up there with the death of a loved one, a major illness, or job loss. For children, the effects can be devastating. When a divorce goes through litigation, children may be called to testify or report to the judge in their chambers. In many instances, a guardian ad litem may be appointed to represent them. After several interviews with the children and others close to them, such as teachers and doctors, the attorney will make a recommendation to the judge regarding custody and visitation. This process puts unwarranted stress on a child. In mediation, children are left out of the discussions. As a child support lawyer Orange County and mediator, we always put the children’s needs first.
  • Expensive and Time-Consuming. Litigation costs thousands, sometimes tens of thousands more than mediation. The process can also continue for months or, in some cases, years.

Is Mediation Possible With High Conflict Couples?

If conducted properly, mediation is possible. Once the couple understands the benefits of mediation and the destructive nature of litigation, they often realize that it is in their and the children’s best interest.

An experienced mediator can make the process much less contentious than either party anticipated.

By laying out the process and goals, establishing each party’s intentions, and creating a safe space for compromise and communication, a settlement can be reached.  

How Does Custody Mediation With High Conflict Couples Work?

When working with a high conflict couple, a skilled mediator structures the sessions to maintain focus. Discussions are direct and on-topic, and interruptions are quickly quelled. In this manner, rising emotions are kept to a minimum and discussions are relevant to the task at hand.

Reaching a positive resolution despite conflict occurs when one topic is addressed at a time. When discussing the parenting plan, bringing up a retirement account only serves to distract.

A facilitator practiced in de-escalation and clear communication techniques always bring the conversation back to the point.

In extreme cases of conflict, a mediator may schedule an initial meeting with each spouse individually. Called pre-mediation, this offers both couples the opportunity to express their concerns, ask questions, and learn skills that can help them stay focused and reduce triggered responses.

As skilled negotiators, a mediator can help couples express their desires in a manner that leads to a conversation instead of a battle. Alternatives and opportunities replace unwavering demands.

A high conflict couple will also be advised to limit any conversations about the divorce settlement and child custody agreements. These conversations should end once the session is complete. Bringing up disagreements only serves to limit the effectiveness of mediation.

Choose an Experienced Mediator

As a certified mediator, family law specialist, and Orange County child custody attorney, our team is helping families resolve their differences in a non-adversarial setting.

Call today to speak with Hollie A. Lemkin to discuss your questions & issues!

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