Mediation: the solution for the high conflict divorce

As the demand for divorce litigation has grown, so too family mediation has also grown and matured to meet the demands of separating families. It has become evident that qualified divorce mediators have all of the skills and abilities to deal with separating spouses embroiled in high conflict divorce. It is these very difficult divorce cases that tend to have a greater likelihood of one or both spouses suffering from a personality disorder, addiction or some form of mental illness. In fact, it should be no surprise that, in these cases, the marriage has failed. Furthermore, the conflict that ended the marriage continues into the process leading to a divorce settlement.

The tell tale signs of a high conflict personality are a spouse that has a long history of relationship conflicts, views relationships as inherently adversarial, shows an inability to accept the end of the relationship, fails to express insight into his own behaviour, denies responsibility in contributing to conflict, has a preoccupation with blaming others and identifies himself as a victim.

It was once thought that high conflict divorces require a court room and a judge. The thinking was that judges have the power to make court orders to control the conduct of the parties, make orders regarding property and support and, especially, divide the children’s time between the two parents – the subject that can be most conflictual.  It was thought that, without court orders by judges, the conflict would continue, because logic, reasonableness and the involvement of lawyers could not bring the hostility to an end.

Whether it be a personality disorder or some other form of mental illness that sets the foundation for a high conflict divorce, the expertise of the professionals involved are critical to assisting the family transition and arrive at closure. Litigation, including all of the procedural protections, multiple steps, high costs and systemic delays, can be exploited by a high conflict litigant in the court process. Particularly in jurisdictions where such cases are not managed by one judge, the family could experience a revolving door of judges which provides fertile ground for the controlling, combative and hostile spouse.

A trained and qualified family mediator is able to work with both spouses and their lawyers to design a process that addresses the power imbalance, ensures physical and emotional safety and paves the way to a settlement. Family mediation (and in some cases arbitration) can offer a family a high level of case management with regular and ongoing communication and meetings, either separate or together, in order to maintain forward momentum in achieving a final outcome. Since good communication is very important in high conflict divorce cases, the mediator can limit the communication between spouses and control the passage of information which is necessary for high conflict spouses. As can be seen, the mediator is best suited to design and implement a structured process with clear steps and milestones to ensure progress. Unlike litigation, where the spouses have no expectation or cannot anticipate who the judge will be at each court appearance, mediation and arbitration offer the spouses and their lawyers an opportunity to carefully and deliberately select the mediator and arbitrator to ensure that the process is fair, managed and solution-focused.

Separating spouses in Ontario are now very fortunate to have access to a population of very senior and qualified divorce mediators and arbitrators who can use their expertise to assist separating families resolve their affairs.