Moving from Litigation to Mediation

In mediation, we start from an underlying premise that we can find a place which will meet the needs of all members of the family. This is not always the case in litigation and often times the needs of the family get lost in a power struggle full of fear & defense.

Can high conflict couples mediate?

Looking back at the highest conflict couple I ever met with… Were they litigious, and went to attorneys who reflected where they were at? Or, did the attorneys make them more litigious? Hard to know.

An example of their intensity: During our session, she was so angry she THREW a pad of paper across the room as if she wanted to throw a boulder at his head.

Can this couple mediate?

They started their divorce process in a negative way – husband’s parents warning the husband, “She might kidnap the kids and take them to Europe. (She’s from Europe, originally). You should take the children’s passports, and change the life insurance while you’re at it.” He did as they adviced… Injecting fear and distrust into the process.

And then he hired a process server to serve the summons for divorce on her – starting with an attack which makes anyone feel fear – and when you are afraid, you look for protection.

The attorneys were fighting over the kids’ schedule for spending time with dad, and when the fight becomes framed as being about power – who will ‘win’ and who will ‘lose’ – it is hard to evaluate the benefit of trying out different schedules, seeing how they feel and what works for the entire family.

In mediation, I could ask, “How about we try mom’s idea for November, and dad’s idea for December, and then meet in early January and see how the kids are doing, and how it felt?”

But that is because, in mediation, we start from an underlying premise that we can find what they both – at least as far as their kids are concerned – need. That there is a place which will meet the needs of all members of the family. An assumption of bounty, rather than one of limited resources. That quality time with each parent benefits the kids and all of them.

We need enough trust that if one says, ‘the baby had a lot of trouble falling asleep,’ the other parent will say, ‘oh, the poor baby, what do you think caused that? how can we help him to avoid that in the future?’ and they can work together to try to resolve the problem.

Here – not sure we had that.

Also – she was invested in proving that she has been the #1 parent in the kids’ lives – wanted to know dad’s work schedule over the past year, to prove that he wasn’t a consistent dad. Instead of the question framed as – how can he be a better dad going forward, given his work and travel obligations?

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