April 23, 2022
Why I Will Never Stop Taking High Conflict Mediation Cases
When family law mediators get together, we often debate about whether it’s appropriate to accept mediation clients who are manifesting extreme stress or one or both of the potential clients has a high conflict personality disorder. There are mediator-attorneys who vociferously believe that the only appropriate mediation clients are people who are calm of demeanor and demonstrably get along. And then there are mediator-attorneys like me who just as fervently believe that everyone should be given access to out-of-court settlement processes, especially people who are having trouble coping with the stress of the divorce process for any reason.
What’s the alternative for people denied access to mediation? The Family Law Court system. My view is that it serves a vital function in our culture, working with people who need to have an outside source make decisions for them and then enforce them, but is highly imperfect. While we can appreciate what the Family Law Court system does well, we should not be inured to the reality that for many people it makes the divorce process lengthy, stressful, and expensive. Often, people who divorce using the Family Law Court system are left embittered and embattled from the experience.
I ask my mediator-attorney colleagues who refuse to take cases with high conflict clients, “Why would we take our most vulnerable people and put them into the Family Law Court system which is likely to magnify their emotional and mental destabilization? Who are we as attorneys to preemptively decide that those vulnerable people are not fit for mediation which is designed to minimize stress and conflict?” I often wonder how an attorney could feel comfortable telling a fellow adult who demonstrates the capacity to contract–and is choosing mediation to resolve their divorce issues–that the attorney knows better than the adult what is, and isn’t, the appropriate conflict resolution method for their divorce.
Though, mediator-attorneys who refuse to take cases with high conflict clients have legitimate concerns. First, a mediator who does take high conflict cases has to have the emotional intelligence, and accompanying skills, to stay centered and engaged with difficult clients. This acumen can be gained through methods as diverse as studying and practicing Powerful Non-Defensive Communication to having a daily meditation practice.
Second, the mediator has to develop a detailed and clear framework for high conflict clients to work within or risk the mediator ending the process. This framework can be established with approaches as various as drafting and enforcing a list of attorney- and client-generated “mediation protocols” which the clients must adhere to at all times without exception to having the court assign a “parenting coordinator” to clients’ court case for times when immediate court orders could keep people comporting themselves within the mediation framework (in Alameda County, the parenting coordinator is what is elsewhere referred to as a “special master”).
Third, the mediator has to be able to occasionally “go to the mat” with clients and then immediately transition back into a mediator-attorney’s more typical professional demeanor. For instance, working with high conflict clients I have done things as disparate and unusual as flinging myself across the middle of my office’s conference room table, physically preventing clients from lunging at each other, to writing a thread of unbilled philosophical emails to salve a client’s pain and/or confusion to get them back on track.
When the attorney addresses these types of legitimate concerns and gains the skills to meet them, high conflict clients deserve the opportunity to work within a non-adversarial conflict resolution model that, ideally, leaves them with some residual communication skills and a feeling of success. At the very least, it leaves them finishing their divorce process more quickly, with more ease, and with less expense than if they had chosen to work in the Family Law Court system.
This is not to say that I haven’t occasionally suffered some harsh consequences for my willingness to take high conflict cases when the clients agreed to work within the detailed and clear framework I created for their mediation process. I’ve experienced being threatened with everything from filing a complaint with The State Bar of California to “ruining [my] business” with a negative Yelp review to sending me hate emails for years on end. So, with possible consequences like that, why will I never stop taking high conflict cases?
I will never stop taking high conflict cases from the humbling honor I’ve had to mediate high conflict cases with clients who worked as hard as a person can work to forge a path to a high quality result that could unquestionably, by all involved, be labeled as, “About as good as our divorce could have ever been.” When I think of some of my high conflict clients’ children living in their new two-household families, with parents who have challenges in navigating the stress of day to day life, I feel a well-spring of gratitude for being given the opportunity to do my part to make the next chapter of their family life as good as it can be.
Due to that professional satisfaction and because I can, I will never stop taking high conflict mediation clients. I will always do my best to serve those who most deserve a conflict resolution method that engenders comity.
Please contact my office for a free 15-minute phone consultation about my office’s family law mediation, Collaborative Practice, consulting attorney, and divorce coaching services. I look forward to speaking with you.
 Still on the table, I loudly and sharply ordered them to, “Sit down! Now! This instant!” and made them both turn their chairs looking at opposite sides for the room away from each other; then I had to get right in one of their face and say, “Don’t even think about getting up. Don’t even think about saying one word.” We enjoyed a few laughs together looking back at that mediation session at the end of their process. I still think of them fondly. They were amazing in how hard they both worked to successfully mediate the end of their marriage.