In mediation, we start from an underlying premise that we can find a place which will meet the needs of all family members. In litigation however, this is not always the case and often 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, I question whether they were litigious to start with and went to attorneys who reflected this or did their attorneys make them more litigious? Hard to know.
Could this couple mediate?
The temperature of their sessions was high, during one mediation, the wife became so angry she thew a pad of paper across the room. They started their divorce process in a negative way. The husband’s parents warned that she might kidnap the kids and take them to Europe. You should take the children’s passports and change the life insurance while you’re at it. He did as they advised. Injecting fear and distrust. Then he hired a process server to serve the summons for divorce on her. Starting with an attack makes anyone feel fear and when you're afraid, you look for protection.
The attorneys were fighting over the kids’ schedule for spending time with dad. When the fight becomes about power, who will win and who will lose, it's hard to evaluate the benefit of trying different schedules, seeing how they feel and what works for the entire family.
In mediation I can suggest, how about we try mom’s idea for November and dad’s idea for December? Then meet early January and see how the kids are doing and how it felt?
This is because in mediation we start from an underlying premise that we can find what both parents need, as far as their kids are concerned. That there's a place which will meet the needs of every family member. An assumption of bounty, rather than one of limited resources. That quality time with each parent benefits the kids and the parents. We need enough trust that if one says, 'The baby had a lot of trouble falling asleep.' The other parent says, 'Oh, the poor baby, what do you think caused that? How can we help her avoid that in the future?' Then they can work together to resolve the problem.
Also, how we frame the other parent outlines how we move forward. The mother was invested in proving that she was the #1 parent. She wanted to know the father's work schedule over the past year, to prove he wasn’t a consistent dad. The focus could have been on how can he be a better dad moving forward, given his work and travel obligations? Instead the focus was on, how can she win.
So many ways open up when we stop the power struggle and can then start mediating.
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