Mediating High Conflict Domestic Relations Cases
By Bobby Marzine Harges
60 La. Bar Journal 212 (October/November 2012)
The way I used to love you
Baby that's the way I hate you now
---Blues Great B.B. King
[Although the vast majority of the cases that we mediate are "conflict free," we occasionally mediate cases that can be called "high conflict." This article is about mediating high conflict divorce cases.]
An increasingly large number of parties who are litigating in family courts in Louisiana are not represented by attorneys. These “pro se” litigants either cannot afford the costs and fees normally associated with litigation or choose not to pay these costs and fees. Thus, they decide to handle their issues in family court themselves without direct representation by attorneys. As a result, these litigants will usually appear before a private mediator who is court appointed by La. R.S. 9:332 or before a court official such as a hearing officer, court commissioner, or judge who may be serving in a quasi-mediative capacity. These “mediators,” whether in private practice or part of the court staff, will need special skills that will aid them in working with the parties they encounter in a mediation. [p. 213]
When parties arrive at a child custody, divorce, or family mediation (hereinafter referred to as “family mediation”), they are usually very emotional. This phase of their lives is full of stress. Some of the losses that parties suffer in a separation and/or divorce are: economic loss; loss of a home; social loss; loss of daily contact with children; loss of a housekeeper, cook, grocery buyer, clothes buyer, and/or taxi driver; loss of a repairman, gardener, or person with technical knowledge; loss of a career, loss of the ex-spouse’s family members and friends; loss of a sex partner; loss of physical security; and loss of a value system.
The emotions associated with these losses affect the parties’ moods, their attitudes, their ways of thinking, and their behavior in a mediation. The feelings that divorcing and/or separating parties could have in a family mediation include abandonment, shock, anger, denial, insecurity, low self-esteem, confusion, depression, loneliness, betrayal, and victimization. Sleepless nights, strange illnesses, and weird feelings are also among the things that participants in a family mediation may also be experiencing. It is also common for parties to experience or engage in behavior that they have never experienced before. Parties may sometimes be surprised by their own behavior. Many times, they are not “themselves.”
Some feelings that may be associated with a divorce or separation include: “I’m going crazy;” “Life isn’t worth it without her;” “I feel dead, like a walking zombie;” “I am sad and cry all the time and don’t know why;” “I’m helpless;” “I’m hopeless;” I’d like to kill my ex;” “If I can’t have her, no one can have her.” and “I’m not me anymore.” The mediator must recognize that these feelings could possibly exist and learn how to deal with them.
During the mediation, it is important for the mediator to “normalize” these feelings. In other words, the mediator should inform the parties that it is not uncommon for people going through stressful times to have feelings that are unusual and that these strange feelings are a natural part of the stressful experience.
Many people experiencing separation and/or divorce have been to counseling, are currently in counseling, or are in serious need of counseling. Thus, in some instances, it may be appropriate for the mediator to suggest that one or more of the parties seek professional counseling. It is rare for the parties to be in complete agreement about the separation or divorce. Usually, one party made a decision to leave after serious deliberation and informed the other party who may be completely shocked or surprised about the separation or divorce.
Role of the Mediator
In a family mediation, the task of the mediator is to be neutral, fair, and impartial. During the mediation, the mediator should introduce himself/herself to the parties, explain the mediation process, allow the parties to state their issues and concerns in their own words, help the parties identify the issues, help the parties generate options, negotiate and/or bargain, and assist the parties in reaching an agreement. Prior to the mediation, the mediator has a duty to assist the parties in formulating a written, signed, and dated agreement to mediate. This document should identify the controversies between the parties, affirm their intent to resolve the controversies through mediation, and specify the circumstances under which the mediation may terminate. Finally, the mediator has the responsibility of drafting the memorandum of understanding, which is a document that states the mediator’s understanding of the agreements reached by the parties. When the parties are not represented by lawyers in the mediation, the mediator has a duty to recommend that the parties obtain review by an attorney of any agreement reached prior to signing such an agreement. It is important to note that in a private or court-appointed mediation, the mediator is not a judge, court commissioner, or hearing officer for he/she has no power to impose a solution on the parties. However, when hearing officers, court commissioners, or judges serve in a mediation-type capacity, this is not always true.
Dealing With Emotional Parties
When emotional parties act out in a mediation or in ways that are not beneficial to the mediation process, the mediator needs to develop a number of tools that he/she can use to assist him/her in dealing with the participants so that the process will not get out of hand. Unlike judges, hearing officers, and court commissioner who have the imprimatur of the court behind them or court officials such as bailiffs, court reporters, criers, or other court personnel to assist them when they meet with disputing parties, mediators have no such status, power, or court [p. 214] personnel. Mediators simply have their power of persuasion, their knowledge of human behavior, their knowledge of the mediation process, and their skills as a neutral and impartial party to assist them in maintaining control of the mediation process.
When a mediator first encounters parties in a high conflict mediation, it is important for the mediator to keep a safe and professional environment. Thus, in his/her opening statement, the mediator should get the parties’ commitment to conduct the mediation under certain guidelines. These guidelines include a commitment to be courteous to the mediator and the other parties, a commitment that only one party speaks at a time, and that if one party has something to say while the other is speaking that he will write down his thoughts on paper so that he can use that information later when it is his time to speak. These rules are important because when the parties begin to argue, the mediator should remind the parties of these ground rules. This reminder may be made by the mediator numerous times during the mediator.
During the mediation process, parties tend to argue about things that occurred in the past. While past occurrences will help the mediator understand the parties and their issues, the mediator should not dwell in the past or allow the parties to remain focused there. When children are involved, the mediator should obtain the parties’ commitment to negotiate based on the best interests of the children. If the parties commit to this ground rule at the beginning of the mediation, bringing their attention back to this commitment tends to disarm them and refocus them on their children. The mediator should reorient the parties to the future and the previous standard that the parties committed to at the beginning of the mediation, “the best interests of the child.” When parties rehash the past, the mediator may ask, “How does that relate to the best interest of your child?” Alternatively, the mediator could state, “That is something I have no control over. It occurred in the past. I want us to focus on the future.”
When the mediator notices that the parties are raising their voices, she should not raise his/her voice to match their tone of voice. This will only escalate the situation and the mediation may get out of control. The mediator should remain calm and focused at all times.
When the parties become excited and begin to speak faster and faster, the mediator should not speak faster to match the parties’ speech. If anything, the mediator should consider speaking more slowly when this happens. This will cause the parties to notice how the mediator’s reaction to their conduct is in contrast to their behavior.
However, it is not necessary for the mediator to correct the parties every time they argue with each other because many the times the parties are voicing their issues, concerns, and gripes with the other party. The mediator should distinguish emotions from behavior. It is normal for parties to become emotional when they are negotiating in the presence of an ex-spouse or ex-lover. As long as the parties are arguing or discussing the matter constructively, the mediator should observe the parties and listen attentively to their statements. The mediator should take note of the concerns of the parties and inform them that she has heard their concerns. This can be accomplished by the mediator mirroring the statements of the parties. Mirroring involves the mediator repeating back to the speaker the mediator’s understanding of the feeling or content of what she has just heard.
If the behavior of the parties becomes destructive or dangerous, it is at this point that the mediator should intervene and take control of the process. The mediator should not allow the behavior of one party to become a threat of harm or harmful to the other party or to the mediator. If safety is a concern, the mediator could terminate the mediation and take whatever action she deems appropriate. Judges, commissioners and hearing officers who are serving as mediators will have the power of the court behind them to help them handle unruly parties.
At all times, the mediator should remain neutral and non- judgmental. She should not
take sides in a mediation for credibility is always in issue. If the parties believe that the mediator is taking sides, trust will be destroyed and very little will be accomplished during the mediation. The mediator is continually struggling to gain the trust of the parties. The more the parties trust the mediator, the more they will cooperate with the mediator in reaching agreement. Trust is not something that comes with the mediator’s credentials or the fact that he/she is a court official. While parties may be impressed with the mediator’s credentials, they may not trust the mediator. [p. 215]
Even when the parties are “acting up,” the mediator should not become disgusted with the parties as if they are acting like children. Remember that this is a seriously stressful time for parties who are separating and/or divorcing. Even when the mediator believes that the parties are “crazy” or “weird” because they are arguing over something that the mediator considers trivial or worthless, the mediator should still be respectful to the parties. Respect builds trust, and trust builds credibility. Credibility assists the mediator in becoming more effective as a neutral.
When the parties escalate their arguments to a point that is not productive, the mediator could call a “time-out.” A time-out literally stops the parties in their tracks and focuses them on the mediator. This is a way of taking control of the process. The mediator is essentially saying to the parties that their behavior is not appropriate for the mediation and that they should change their behavior. After calling time out, the mediator can refocus the parties on the basic ground rules that they agreed to at the commencement of the mediation. At this point, the mediator could suggest a neutral path toward resolution.
If the parties began to name-call, become aggressive, or escalate their behavior beyond what is considered safe for a mediation, the mediator could consider calling for a caucus. A caucus is a private meeting between the mediator and one of the parties. If the anger is being directed toward one party, when that party is removed from the presence of the aggravated party, the anger may decrease. The mediator must inform the parties that anything disclosed in the caucus will be kept confidential if the party makes such a request.
The mediator’s training is often helpful in assisting him/her to handle emotional parties in mediation. In Louisiana, mediators who mediate child custody and visitation issues are required to obtain mediation training regarding ethical standards, including confidentiality and conflict of interests, child development, including the impact of divorce on development, family systems theory, and communication skills. Moreover, although not required by Louisiana statutory law, child custody mediators should also receive training on domestic violence issues. This training should help the mediator recognize when safety is a concern, when the mediation process is no longer productive, or is not fair to one of the parties such that the mediation should be terminated.
An understanding of the nature of family systems and the dynamics of divorce will help the mediator understand when a party is making concessions simply to appease the other party. Additionally, knowledge of these matters will tend to assist the mediator in determining when there is a serious power imbalance in the mediation. Knowledge of power imbalances allows the mediator to empower the weaker party by asking questions and developing the information and knowledge base so that both parties can make informed decisions.
Custody mediators in Louisiana are also required to receive training in the Louisiana judicial system and judicial procedure in domestic cases as well as on the mediation process and required document execution. This training should aid the mediator in understanding the judicial system, the mediation process, and how to help the parties reach agreement.
Parties usually enter family mediations very emotional and under a large amount of stress. These emotions and stress will cause a great deal of conflict as the parties attempt to negotiate with each other. The mediator should realize that these emotions are a normal part of a stressful time for the parties. This understanding by the mediator will aid in appreciating the emotions and feelings the parties are experiencing and will assist in developing appropriate tools and techniques for dealing with emotional parties in family mediations.
Bobby Marzine Harges has mediated all types of cases in Louisiana, Mississippi, Massachusetts, and Texas. He is the Adams and Reese Distinguished Professor of Law at Loyola University College of Law. He is a member of the Louisiana State Bar Association’s Alternative Dispute Resolution Section. He is the author of the book, The Handbook on Louisiana Alternative Dispute Resolution Laws, recently published by Esquire Books. (7214 St. Charles Ave., Campus Box 901, New Orleans, LA 70118).
 See. La. R.S. 9:333(C) (articulating duty of mediator in child custody and visitation mediations).
 See La. R.S. 9:333(A) (articulating duty of mediator in child custody and visitation mediations).
 La. R.S. 9:333(B) (articulating duty of mediator in child custody and visitation mediations).
 La. R.S. 9:333(C) (articulating duty of mediator in child custody and visitation mediations).
 La. R.S. 9:334(C) (Louisiana mediator qualification statute for child custody and visitation mediations).