Can You Use Mediation in High Conflict?
It’s a common misconception that mediation will only work when both parties are amicable. In reality, family mediation can help high conflict separations the most because they would otherwise be stuck in a lengthy legal battle. As long as both are willing to participate in the mediation process in good faith, even very high conflict situations can be helped. It’s always important to find an experienced, qualified family mediator who is equipped to handle high conflict.
If you’re in a high conflict situation and considering mediation here are some things to look for:
A Mediator Trained in Conflict Resolution
Some mediators are trained in family law, but not conflict resolution. It’s crucial to find a mediator who understands power dynamics and conflict resolution strategies. Using an accredited mediator through an association like OAFM can ensure they’ve gone through conflict resolution training. A mediator who’s trained in conflict resolution will ask lots of questions and continually assess the situation. Someone who’s prescriptive and tells you how they think things should go is likely not qualified to handle high conflict.
Screening for Domestic Violence and Power Imbalance
A family mediator should spend time meeting with each party individually to talk to you about what’s happened in the past, what’s happening now, and the dynamics of the relationship. This should include questions about violence, all forms of abuse, substance abuse, mental health, and accessing finances. These meetings should be at least an hour of time to fully assess a situation, and they will often be as long as 90 minutes each. An experienced family mediator will spend time assessing the situation to determine if it’s safe for mediation. They may assess that it’s safe, but make some changes to the process. Sometimes, in situations of high risk for violence, self-harm, or harm to children, mediation cannot proceed. This is usually because one party needs legal protection and a lawyer who can file emergency orders with the courts.
Changing the Process to Minimize Conflict
Not all mediations should follow the same process. Amicable parties will often attend sessions together even on the same screen, have longer meetings close together, and be willing to talk about all manner of issues. When the situation is high conflict it may work better to have shorter sessions spaced farther apart. It becomes very important to ensure that clients each have their own private device and space to attend the meeting. This is so each party can communicate one-on-one with the mediator if needed, and isn’t pressured or coerced in any way. It may even be necessary to conduct “shuttle” or “caucus” mediation where the mediator acts as a go-between and the parties don’t ever speak directly to each other.
Allowing You Control in the Process
A family mediator should listen and act on any concerns you having during the process. This should happen continually; before each joint session, in response to any of your correspondence, and reflected in your final agreement. If you don’t feel that your concerns have been met it could be a sign that the mediator hasn’t recognized the power imbalance, or isn’t qualified to deal with it appropriately.
Using Qualified Professionals to Support Safety
Where there’s high conflict there’s often some combination of substance abuse, safety issues, and mental health concerns. One way to keep the process safe is by insisting that professionals aid in the process. This may mean Child Protection Services doing an assessment of the home to ensure the children are safe, pausing the process while one party gets a mental health assessment, or contacting the local women’s shelter to do a danger assessment. If safety concerns have been raised then a mediator isn’t qualified to assess whether or not it’s safe to continue. They should defer to professionals who can.
High conflict separations can be helped with family mediation. Understanding the risks and power dynamics is crucial to structuring a process that is safe and far. It’s always important to find a qualified mediator, but it’s crucial in a high conflict separation.