Mediation & High-Conflict Divorce

Mediation & High-Conflict Divorce

In an ideal setting, mediation is a process in which a divorcing couple sits with a mediator and negotiates in good-faith towards a settlement that is considered by each party to be fair and reasonable. During that scenario, each person will express their goals and concerns, the other person will hear those thoughts and address them, and the process will productively go back-and-forth regarding each issue. The Mediator will explain and inform the couple about the law in Florida, and intervene on those rare occasions when disagreement arises and can’t be resolved directly by the couple.

A step-down from the idea scenario is the more common situation where the couple agree on the desire to divorce, have a general idea what they each want to accomplish and how they envision their future lives and the future lives of their children. While they will not automatically agree on every important issues, after intervention and guidance from the mediator, they will often bend their positions to enable each to give-and-take a little here and there, resulting in agreement on the issues confronting them. This type of couple accepts in principle that each will not get all they desire, and that their goal is not to end the mediation with a clear “winner” and a declared “loser.” Rather, this couple realizes from the outset of the mediation process that their goal was to both walk away as “winners”. In essence, they changed their negotiation posture from a goal of creating an agreement that each found absolutely perfect, to one that each found absolutely acceptable.

You might be thinking that such a shift requires both parties to be extremely cooperative, flexible and easy-going. While those characteristics certainly help the negotiating process, they are not required. Even in a case involving high-conflict couples, mediation can often be successful and productive – though it may take a little longer and travel a bumpier road. Working with a mediator – such as myself who has been a lawyer for over 22 years – and who has the mindset and understanding to listen past the actual words being spoken and focus on their intended meaning, high-conflict couples or individuals can effectively resolve the issues pertaining to equitable distribution and parental responsibility and time-sharing.

My goal as a mediator is to help couples, in general, and high-conflict couples, in particular, set aside – even for a moment – the anger, pain and resentment that often is the true culprit causing them lash out at one another. For these individuals/couples, effective communication is often challenging, especially when high-emotion is flowing throughout their mind and body. Research shows that when humans are faced with fear, danger or very strong, intense emotions, our natural “flight-or-fight” response takes over and suppresses our normal intellectual and executive functioning.

Therefore, I work diligently and respectfully to help couples to refocus their mindset on what is really important to each of them regarding their future and their family’s future.  Invariably, despite acrimony and hostility, for most people, the answer is emotional and financial stability for themselves and any children they might have, and an end to conflict and the negativity it tends to perpetuate. I always remain focused and committed as a mediator on helping a couple to remember that their goals is to obtain a negotiated a settlement and a secure future more than they want to fight with each other or get revenge.

One of the tools I often use to prevent couples from jumping down each other’s throats is to ask them to think, every time they are about to say something cruel, whether the statement is going to move them closer to their stated and desired goals – or is going to move everything in the opposite direction. Regardless of age, sex, nationality, race, ethnicity or religion, married people simply know how to push each other’s buttons. People we have loved and trusted (and sometimes still do) are uniquely qualified to find just the right words that cuts us to the bone, or that dredges-up every fear, insecurity, and humiliation buried inside.

Most people can restrain themselves before uttering such words. Yet, for some people, they simply cannot control themselves and constrain their behavior and words resulting from strong emotions. There is a story of a couple who were unable to bite their tongues. At every opportunity, they made those hurtful, stinging statements, and they couldn’t seem to stop themselves. The accusations cut deep – as they were intended to. She accused him of being a failure as a provider, a father, and a husband. He accused her of being a failure as a mother and a companion. They both accused each other of selfishness, wastefulness, and treachery of all kinds. It just kept spilling out. At every crucial juncture where settlement seemed close at hand, another shot would be fired, another dagger plunged. Many times the mediation was on the verge of collapse.

In those times, I often call a “caucus” – which is basically where the couple is separated and I speak with each party alone. I have noticed that almost always the level of tension, anxiety and hostility subsides quickly. In addition to being a licensed attorney and a Florida Certified Family Law Mediator, I am also a graduate student studying Marriage and Family Therapy. Two of the core principles behind the process of working with couples and families are: (1) “a person cannot not communicate”; and (2) “a person cannot not behave.” For the lay person, this may sound confusing, illogical and utter nonsense. However, when understood from a systemic perspective, it is easy to comprehend what these quotes truly mean. In any relationship of two or more people, and especially in high-conflict couples, one person’s behavior and communication is a direct result of the other person’s behavior and communication. Think of it as the proverbial ‘chicken and the egg’ riddle. With couples, no one truly can dissect a relationship to find the one instance or one moment in time when the initial behavior caused the partner’s reaction. In truth, each feeds off of the other. By separating the couple, I am able to break that cycle of communication and behavior, and allow each person to calmly and clearly think about their goals on a particular issue – and not about how they want to harm or hurt the other person.

Any relationship has conflict – even the “best” relationship or the “ideal” couple. When the realities of divorce are confronting any couple, emotions run at full blast. From sadness to happiness, fear and freedom, and love and hate, each person faces a gamut of feelings. It is unrealistic to expect that a couple, who has decided to end a marriage and live their future as two individuals, will be able to calmly and patiently sit in the same room with their soon-to-be-ex and resolve the most important issues confronting a family. However, with a trained, dedicated and understanding mediator by their side, even the most contentious issues can be worked on in a productive manner.

If you are ready to divorce, want to avoid a financially and emotionally draining legal battle, and desire an economical “Peaceful Split,” then Attorney and Florida Supreme Court Certified Family Mediator, Eric B. Epstein, Esq., and Florida Supreme Court Certified Family Mediator, Erica H. Epstein, are ready to assist you.

 

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