Mediation With High-Conflict Couples

Mediation With High-Conflict Couples
Mediation With High-Conflict Couples

Divorce litigation can be a complicated matter both in legal and personal terms. Regardless of intentions, the separation process is rarely straightforward. This is even truer in cases where custody is contested. Let’s discuss the many moving parts that make divorce litigation uniquely complex while also highlighting the potential for mediation and negotiation. At ADR Times, there is an understanding that exploring negotiation options beyond the courtroom is crucial for the well-being of families. For this to be effective, mediators must be trained in negotiation with high-conflict couples.

What Are the Telltale Signs of a High-Conflict Couple?

Communication breakdowns are often at the heart of contentious divorces. For many, getting on a productive communication path can create better problem resolution. However, “bad blood” can lead to escalation into anger and blame that essentially breaks down any paths to amicable communication. Typically, one perceived offense perpetuates greater feelings of offense that can snowball into a full-blown “battle” full of anger, resentment and spitefulness. The two main hot-button issues for conflict escalation in divorce are custody/visitation and economics.

Typically, the argumentative, emotion-fueled communication patterns of high-conflict couples who are at odds with custody arrangements require high degrees of collaboration. This would include things like loose, informal custody plans or joint custody. According to Mnookin & Kornhouser (1979), joint custody can be compared to Solomon’s threat of cutting a child in half. In fact, any arrangement that hinges on constant communication between two people locked in an acrimonious relationship would potentially create what can be described as “endless possibilities for antagonism between the parents, with predictably detrimental effects on the child’s well-being.”

Acting in a Mediator Capacity With High-Conflict Couples

Mediators coming to the table as neutral parties tasked with the goal of attempting to reach a settlement with positive outcomes and avoidance of blame are on constant watch for signs that one or both parties have other intentions. In particular, mediators matched with high-conflict couples to work on custody disputes need to be alert for key signs that may strongly indicate the odds of failure or success. A mediator must be in a state of constant evaluation to determine the intentions of each party in regards to cooperating or simply going through the mandated motions. Next, we can look at the specific “red flags” that can either deter mediation or remove it as an option entirely.

Parental Alienation Syndrome

A complex manifestation of mental abuse and emotional manipulation, parental alienation syndrome (PAS) poses a serious threat to the outcome of mediation attempts. This can be a difficult dynamic to detect because a great deal of manipulation has likely already occurred by the time a mediator sits down with a couple. As a result, the validity of statements and opinions shared by both the adult parties and children involved could potentially be tainted. A typical presentation of PAS might play out in the following way:

  • The alienating parent disparages the targeted parent through accusations of being dangerous, harmful or neglectful. The alienating parent will often greatly exaggerate any real or imagined faults of their target. In addition, manipulation is used against the children involved in the form of telling them that the targeted parent does not love them (Gardner, 1992).
  • The children pick up the cue that they must “hate” the targeted parent. They often align with the alienating parent. Alignment typically means either disparaging or outright abandoning the targeted parent.
  • The motivation of the children is to avoid also being rejected or abandoned by the alienating parent.

The motivation of the alienating parent is often to cope with personal hurts and disappointments regarding their failed marriage. By enlisting the children to join in, the alienating parent can successfully project the responsibility for all failures onto the targeted parent (Seigel & Langford, 1998). Mediators will often observe that alienating parents sees themselves as “perfect” and “blameless” in regards to their failed marriage.

Due to the fact that parental alienation can be so difficult to detect, negotiation isn’t always as effective as other forms of litigation when this dynamic is in play. This is one of the reasons why mediators should posses a detailed understanding of parental alienation syndrome. Warning signs to look for early on in the negotiation phase include stalling, blaming and scapegoating.

Domestic Violence

Domestic violence can take the forms of physical, sexual, psychological, abuse, economic abuse, coercion or intimidation. Unfortunately, the mediation process can be a ripe plane for an abusive spouse looking to manipulate their way into retaining control and domination over a spouse and children. What is especially troubling in regards to abusers is that they can master their way into continuing abusive behaviors using court-sanctioned methods. In order to continue with mediation in a case where a history of domestic violence is present, a mediator trained in family violence and mediation techniques must be at the table. These mediators specialize in using methods that address and account for the “power imbalances” that may be present within a relationship dynamic. Generally, it is argued that joint custody and mediation can work against the best interests of children when a history of abuse is present. There is the potential for power and control issues to be perpetrated in ways that re-victimize both the abused spouse and the children involved. More rigid, controlled options for litigation may be advantageous when there is a potential power imbalance to play out in regards to any negotiations.

Identifying the Correct Approach for Resolution

While it’s true that mediation does open up room for contention among high-conflict couples, this option shouldn’t necessarily be abandoned. A good case can be made for the idea that mediation can be far less contentious than a spouse-versus-spouse litigation scenario. According to Pearson and Thoennes (1986), mediation will not transform hostile couples into cooperative ones or eliminate future conflict. However, it may be less damaging for children than hostile court interventions. Lund (1995) builds on this thought by highlighting the importance of lowering the overt conflict in PAS cases to create space between the children and the conflict of the parents.

A Look at Mediator Training and Qualifications

Mediators entering into any of the very challenging and complex family dynamics that could be on display in a divorce scenario must be trained to both identify and manage these situations with prudence. A high level of skill honed through thorough training is essential. The multifaceted training involved should cover the following:

  • Custody evaluation issues.
  • Domestic violence.
  • Parental alienation syndrome (PAS).
  • Child abuse/emotional trauma.
  • Power and gender issues.
  • Implications and dangers of joint-custody agreements.
  • Mediation via multidisciplinary teams.

In addition to being trained in identifying and addressing the conflict points above, a trained mediator should also have established mediation skills. Qualified mediators also understand the limitations of mediation when it is implemented in high-conflict scenarios. As a result, resourceful mediators understand the importance of shifting to alternative processes for the sake of creating safe, secure outcomes that shield against potential abusive behaviors and power dynamics.

Step 1: Pre-Mediation Screening

Screening that takes places prior to engagement within a mediation setting is crucial for avoiding placing abusers and victims in scenarios that perpetuate abuse. As a holistic tool, pre-mediation screening is used to determine whether mediation is an appropriate option for a specific couple. Using field-tested models, a mediator typically relies on a questionnaire or interview format to screen for signs of abuse, violence or PAS.

A mediator can often conclude that the desire to reach an agreement relatively easily is sincere when both parties voluntarily seek mediation. By contrast, a high-conflict couple that has been referred to mediation through the court may not benefit from mediation. This is even the case when just one partner is very open to mediation. As Turkat (1994) highlights, one uncooperative or unwilling party can sabotage or frustrate the entire process. A mediator must know when it is in the best interest of those involved to refer a couple to a court that can provide legal representation for children, a mental health professional, a family evaluator or a combination of the above.

Step 2: Introductory Mediation Session

The goal of the mediator in the first mediation session is to acknowledge and address any concerns held by either of the two parties. Controlling behaviors, intimation and signs of violence will also be looked at. In cases with children, mediators use the introductory session to look for signs that one of both parents could be unwilling to give up control, let go of a power dynamic or put the needs of children before their own. Below are some potential remarks that mediators should be listening for when the topic of the children involved are being discussed.

  • “She is always starving when she returns from visits. Does he feed her?”
  • “My child begs not to go to visits at her father’s place.”
  • “He never wants to talk to his mom on the phone when he’s at my house.”
  • “The visits make it impossible to stay on track with sports and activities.”
  • “He was never involved with the kids when he lived here. I doubt he wants to spend time with them now. You know he’s just doing this to hurt me.”
  • “He is always crying when he returns from visits with his dad.”
  • “The visit just aren’t good for my child.”

Consistent use of remarks and justifications similar to the ones shared above could be signs of parental alienation syndrome. However, a remark peppered in once in a while does not necessarily indicate that any type of intentional alienating behavior is taking place. It is up to a trained mediator to be able to use other factors and criteria in combination with “red flag” phrases to determine if this could be the case. Next, specific characteristics of children being exposed to parental alienation syndrome will be covered.

Common Characteristics That Are Often Observed in Children with Parental Alienation Syndrome

Trait: A denigration campaign.
Behavioral Expression: The child displays “hatred” of one parent.

Trait: Irrational or absurd rationalizations for the deprecation.
Behavioral Expression: The child provides irrational/unreasonable justifications for not wanting to associate with the hated parent.

Trait: Lack of ambivalence.
Behavioral Expression: Black-and-white view of parent-child relationships as being “all good” or “all bad.”

Trait: A false show of independent thinking.
Behavioral Expression: The child insists that they’ve decided to reject a parent fully on their own while denying that the other parent has influenced them.

Trait: Reflexive support of the loved/preferred parent.
Behavioral Expression: Children will persist in loyalty to the loved parent even when confronted with evidence of deceitful behavior.

Trait: Lack of any guilt over the treatment of the hated parent.
Behavioral Expression: Full lack of disregard for the hated parent’s feelings.

Trait: Adherence to borrowed/stated scenarios.
Behavioral Expression: Child can be observed repeating language and phrases when describing scenarios that are not typically used by the child.

Trait: Spreading of contempt for the hated parent to extended family.
Behavioral Expression: The child rejects the relatives of the hated parent by extension regardless of previous bonds.

When not handled gingerly, fragile relationships between parents and children in high-conflict divorces can create irreparable harm. It is possible that the intentions of one or both parents are not in line with what is best for the long-term healthy development of a child. For this reason, lawyers working on behalf of parents must be able to recognize when it is time to take efforts to minimize the potential for adverse effects by bringing in mediation efforts. Due to the fact that lawyers do represent the interests of parents, it is sometimes necessary to recommend the an an Attorney Ad Litem be appointed to represent the best interests of any children involved.

The Process for Appointing an Attorney Ad Litem Prior to a Second Mediation Session

A mediator should seek parental agreement for allowing additional professionals to participate in the custody and visitation process if it becomes clear that more support needs to be provided for the children. Generally, this means that the mediator requests a consultation with a family evaluator or mental health professional either in person or over the phone. The purpose of bringing in outside expertise is to determine if an Attorney Ad Litem should be appointed.

It’s possible that the parents will not agree to have additional professionals become involved. In such a case, a mediator should recommend that the attorneys representing the parents petition the court to request the appointment of an Attorney Ad Litem. Noncooperation in regards to appointing representation for the children from the parents may be an indicator that mediation should not proceed. The following is a condensed life cycle of what a mediator’s approach for having an Attorney Ad Litem (AAL) appointed should look like:

  • The mediator begins by making a recommendation to the parents that additional experts/evaluators should be brought in to determine if ALL is necessary.
  • A mediator proposes the idea to the attorneys of the parents if the parents do not agree after the initial suggestion.
  • Once accepted, an ALL is invited to attend future mediation sessions.
  • An appointed AAL obtains all necessary information regarding the case from the family evaluator and lawyer for each parent. A mediator should never disclose details obtained in mediation sessions prior to the introduction of the ALL unless the parents have consented to information sharing.
  • Parents should be given clear explanations regarding the role of the AAL right away.
  • Both parents should be given opportunities to meet with the ALL to discuss any thoughts or concerns.
  • An ALL spends time interviewing the parents, extended family, grandparents, physicians, therapists and other relevant people in order to form an opinion regarding what would be in the best interest of the child or children involved before making a formal recommendation.

A mediator should know that an ALL should be brought in whenever suspicions regarding violence are abuse are present. In addition, it is a relatively widely accepted belief that an ALL should be brought in for all high-conflict custody disputes.

Step 3: Conducting the Second Mediation Session

It’s important to discuss the role of timing in regards to the second mediation session. An AAL will need sufficient time for information sourcing once they are brought in to provide an evaluation. However, no more than two months can pass since the initial mediation session before the second session must take place. The AAL should be present at the second session. The shifting dynamic of having a participant-observer pair in mediation creates a supplemental form of the traditional mediation model. This is something that a mediator must adjust for when interacting with parents. In addition, a mediator’s approach must be adjusted slightly to account for any manipulation attempts in cases where couples are participating in court-appointed mediation.

Mediators should rely on the input of AALs when charting paths forward during the mediation process. Mediators can and should invite AALs to share observations regarding parental circumstances and dynamics. Using both personal observations and AAL input, mediators can decide the best options for moving forward. Input from AAL’s can sometimes shed light on the need for moving forward in a new direction based on issues or concerns that have been revealed through professional observation.

It’s possible that a mediator perceives that a willing couple could benefit from therapeutic intervention as they proceed with mediation. If a couple is willing, a mediator certainly can and should recommend moving into the therapy phase with help from a qualified mental health professional throughout the rest of the mediation process. The goal of therapy is to help a divorcing couple learn healthy ways to manage the new family dynamic. A mediator should collaborate with the couple to schedule the third mediation schedule only after time has been spent working with a mental health professional. However, it’s important to not allow more than two months to pass between sessions to avoid any harm that could potentially come from drawing out the process. This is especially important in situations where parental alienation or other types of abuse are part of the dynamic. In this case, the mediator could, in a default manner, be “siding with” or empowering the abusing behavior of one parent.

Step 4: Terminating the Mediation Process

If parents are positively engaged in therapy, it’s recommended that the mental health professional involved attend the final mediation session. The mental health professional should be invited to provide feedback regarding how the couple can move forward with establishing and respecting boundaries within a new family dynamic.

The close of this session should ideally end in a settlement that both parties can agree to peacefully. However, this is not a guarantee. If no settlement can be reached, the family is then referred back to the courts. It’s possible that both the family evaluator and therapist who participated in mediation will be asked to testify regarding the safety and wellness of the children involved if the case does refer back to the courts.

Concluding Thoughts on Mediation

A mediator must be in a constant state of “taking the temperatures” of the parents involved to check that they continue to demonstrate willingness to proceed with mediation. Even willing parents can change their minds as mediation progresses. If either party raises concerns that he or she has engaged in either domestic violence or parental alienation, the mediator must be prepared to use a directive approach to ensure safety for all.

The Recognition of Collaborative Roles

At its core, effective mediation is a collaborative process between all of the professionals involved as either parental representation or appointed observers. The common goal is to reach an agreement that serves the best interests of all parties involved. However, a special emphasis is placed on ensuring that what is in the best interests of the children involved is done. A large part of achieving this goal rests in a mediator’s ability to reduce what can be seen as the destructive effects of parental separation and shifting family dynamics. Attorneys and mediators should operate based on a shared recognition that prolonging separation and custody cases can ultimately harm the relationships between children and their parents by exacerbating tensions.

The Importance of Well-Qualified Professionals in Varied Roles

Effective mediation requires high levels of skill and familiarity in the context of family relationships. Those same skill levels are required of Attorney Ad Litems, mental health professionals and all other professionals who enter the situation in supportive or evaluating roles. For mediators, it is a matter of balancing an understanding of family dynamics with an understanding of legal matters. Mishandling of a case can have severe and long-lasting consequences for both the children and adults within a family if mediation is mishandled due to incompetence or carelessness on the part of a mediator. At the forefront of every mediator’s mind must be the understanding that parental-child bonds are highly valuable and important.

The Benefits of a Team Approach to Mediation

It is certainly possible that a mediator may be able to successfully work with a couple through the mediation cycle without any additional professionals. However, mediation should not be seen as failing or ineffective if the need to bring in additional professionals does arise. Bringing in an Attorney Ad Litem or mental health professionals can ensure that all safeguards are being put in place to shield both adult and minor parties from potential alienation, violence and abuse. This is especially true in cases where high-conflict couples are seeking mediation. Reinforcements working in collaboration with the main mediator may be able to help to keep the process oriented toward positive progress in situations where one or both parties may be exhibiting signs of manipulation tactics. Peripheral support is also useful for bringing new perspectives or observations to the attention of the core mediator. In addition, family therapy or psychological support can help to create a smoother transition toward a new dynamic even in cases where no abusive or toxic behaviors can be observed.

Final Thoughts on the Role of Mediation With High-Conflict Couples

For many families, mediation is the answer to a smoother, more amicable separation of spouses. It can and should be viewed as a “first option” in many instances. However, mediators must also be trained to know how to detect signs that mediation simply is not the best choice for a specific family due to unwillingness of the parents, abuse dynamics and a number of other factors. In addition, no mediator should be expected to act “as an island” in the negotiation process. Knowing when and how to bring in other professionals to provide observation and support is crucial. However, no amount of outside support can replace a mediator’s own ability to spot and manage high-conflict couples. At ADR Times, the message is clear that mediators should be given the support and resources necessary to serve the best interests of couples, children and each family as a whole to avoid needlessly hostile arbitration proceedings, or even messier public litigation processes.

Mark Fotohabadi
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