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.[1]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.[2] 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.[3] 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.[4] 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.[5] 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.

Developing Trust

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.

Time-Out

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.

Mediator’s Training

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.[6] 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.[7] This training should aid the mediator in understanding the judicial system, the mediation process, and how to help the parties reach agreement.

Conclusion

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).

[1] See. La. R.S. 9:333(C) (articulating duty of mediator in child custody and visitation mediations).

[2] See La. R.S. 9:333(A) (articulating duty of mediator in child custody and visitation mediations).

[3] Id.

[4] La. R.S. 9:333(B) (articulating duty of mediator in child custody and visitation mediations).

[5] La. R.S. 9:333(C) (articulating duty of mediator in child custody and visitation mediations).

[6] La. R.S. 9:334(C) (Louisiana mediator qualification statute for child custody and visitation mediations).

[7] Id.

Louisiana Bar Exam Results for July 2017 Recently Released

October 24, 2017

The results for the July 2017 Louisiana Bar Exam were recently released. The overall pass rate was 60.55%. Of the four Louisiana law schools, Tulane Law School had the highest pass rate ((60.00%), with Loyola University New Orleans College of Law having the second highest pass rate (57.50%). Southern University Law Center was third (56.18%), and LSU Law Center was fourth (47.06%).

The results are as follows:

Tulane Law School                                                           85.94%

Loyola University New Orleans College of Law            81.58%

LSU Law School                                                               80.54%

Southern University Law Center                                    50%

The overall pass rate for Louisiana law schools was 72.57%, and for non-Louisiana law schools, the overall pass rate was 69.79%. For more information, visit the web site of the Louisiana Supreme Court, http://www.lasc.org/press_room/bar_exam_results.asp

This information is provided as a service from Conflict Free Divorce and Mediation Training Company. For questions about family mediation or mediation training, please visit www.ConflictFreeDivorce.net or www.MediationTrainingCompany.com. Posted October 24, 2017.

The results for the February 2017 Louisiana Bar Exam were recently released. The overall pass rate was 60.55%. Of the four Louisiana law schools, Tulane Law School had the highest pass rate ((60.00%), with Loyola University New Orleans College of Law having the second highest pass rate (57.50%). Southern University Law Center was third (56.18%), and LSU Law Center was fourth (47.06%).

The results are as follows:

Tulane Law School           60%

Loyola College of Law     57.5%

Southern Law Center       56.18%

LSU Law School              47.06%

The overall pass rate for non-Louisiana law schools was 73.97%. For more information, visit the web site of the Louisiana Supreme Court, http://www.lasc.org/press_room/bar_exam_results.asp

This information is provided as a service from Conflict Free Divorce and Mediation Training Company. For questions about family mediation or mediation training, please visit www.ConflictFreeDivorce.net or www.MediationTrainingCompany.com. Posted May 8, 2017.

Check out the new book on Louisiana DWI/DUI Laws that was just published by Thomson Reuters. It is available at tmsnrt.rs/2fveYPj  . A description follows:

Louisiana DWI presents a broad overview of the DWI laws in Louisiana. The text serves as a guide to prosecutors, defense attorneys, and judges who have to apply and interpret Louisiana DWI laws. More specifically, this book provides analysis and discussion of the wide variety of Louisiana DWI statutes and regulations. It is not designed to favor the prosecution or the defense in DWI cases, but to provide a resource that both sides can refer to for information in DWI cases.

The individual sections of Louisiana DWI explore in depth how the different statutes and rules governing DWI are applied, providing commentary of current court decisions, statutes, and regulations. Each section provides background information about each statute, along with the available caselaw, illustrating how courts in Louisiana have applied the rules and regulations to a particular case. In short, this book presents substantive information that will not only educate readers about the DWI statutory and regulatory schemes, but will also increase the reader’s overall knowledge and understanding of the DWI laws and how they operate in practice.

This book begins with a discussion in Chapter 1 of the criminal laws affecting driving under the influence of drugs and/or alcohol. Chapter 2 contains a discussion of the Louisiana Implied Consent Laws (the civil laws affecting DWI). Chapter 3 covers suspension of driving privileges for DWI related offenses. Chapter 4 addresses related serious driving offenses, while Chapter 5 summarizes related non-serious driving offenses. Chapter 6 deals with stops, searches, and seizures of motorists suspected of driving under the influence of drugs and/or alcohol. Chapter 7 reviews the many field sobriety tests used by law enforcement officers to determine if a person is driving under the influence. Finally, Chapter 8 serves as an introduction to the laws pertaining to the expungement of DWI arrests and convictions. This chapter also contains a list of the various expungement laws in Louisiana as well as the forms that must be filed with expungement requests.

The end of the year can be a lonely time for people who are separating or divorcing. With the intent to begin the New Year without the baggage of last year, those who are breaking up often ask, “how can I afford the costs of an expensive divorce or separation? After all, when I go to court, I will have to pay court costs, costly attorney’s fees, and other miscellaneous fees associated with the litigation process.”

Costs associated with a divorce in this country can range from a few hundred to many thousands of dollars, with the average cost of a contested divorce ranging from $15,000 to $30,000. A significant portion of these costs is legal fees. Divorce costs differ depending on the type of divorce, how well the parties work together, and whether the parties use options such as family mediation. On the other hand, divorce or family mediation costs only a fraction of the costs associated with a contested divorce. When thinking of family mediation, think hundreds or even a few thousand dollars as opposed to tens of thousands of dollars.

In Louisiana, divorce lawyers usually begin with a required initial retainer from the client that can range from $2,500.00 to $5,000.00. And that retainer has to be replenished when the initial sum is partially used up. Divorce lawyer bill by the hour for such things as meetings with the client, telephone conferences with the client and the opposing lawyer, time drafting court documents, time reviewing documents received from the client and the opposing side,  time investigating the case, legal research, court hearings and conferences, time waiting for the judge and for time responding to the client’s concerns.  Many clients are often shocked by the enormous fees associated with a litigated divorce.

On the other hand, family mediators usually collect the mediation fee at the beginning of each mediation session which will usually lasts two hours.  Mediators bill their clients for the time spent in mediation with the clients and in drafting the Memorandum of Understanding. A typical hourly fee charged by a family mediator in Louisiana is $250.00 per hour, and that hourly fee is generally split in half, that is, each party pays one-half of the hourly fee instead of  each party paying an whole hourly fee  to his or her lawyer. The family mediation process can usually be completed in 4-6 two hours sessions. Individual times may vary, with some mediations completing in less time and other mediations requiring more time to complete.

At Conflict Free Divorce in New Orleans, LA, we have the experience and knowledge to help you and your spouse or partner develop an effective and lasting settlement agreement that will serve your needs for years to come. We believe in the divorce and separation mediation process and have seen it effectively used in hundreds of cases in the New Orleans area. It’s important to have an experienced and knowledgeable divorce mediator helping to work things out amicably. So, if you want to begin the New Year with a fresh start, contact us today.

Call Conflict Free Divorce to speak with an experienced Family and Divorce Mediator in New Orleans, or browse our website to learn more about child custody mediation, Separation Mediation Services and the Cost of Divorce.

Sources: Lisa Magloff, Demand Media,  The Average Cost for Divorce –  http://info.legalzoom.com/average-cost-divorce-20103.html [visited 12.28.15]; How Much Will My Divorce Cost and How Long Will it Take? – http://www.nolo.com/legal-encyclopedia/ctp/cost-of-divorce.html [visited 12.28.15]

Posted 12.28.15

When deciding to hire a family or child custody mediator to assist with your divorce or separation, it is important to choose one who will work well with you and your spouse or partner. In choosing the right mediator, you might wish to ask the following questions?

1. What is the mediator’s experience? How much experience does the mediator have in handling disputes such as the ones you have? Has he mediated a multitude of cases or just a few? The issues that can arise in a family mediation are child custody, visitation, child support, spousal support, division of community property, asset distribution, division of liabilities, money matters, post-divorce  or post-separation financial plans, distribution of retirement plans, insurance matters, and medical and dental coverage issues, just to name a few. Before making a decision, you might want to determine if the mediator has handled some or all of these issues. If the mediator that you are thinking of hiring has not handled many of these issues, it might be better to find a more experienced mediator.

2. Have you interviewed the mediator? Mediation is a very competitive field in the twenty-first century. To determine if you are hiring the right mediator, you might want to consider interviewing the mediator. Pick up the telephone and call the mediator. Ask him questions about the concerns you have. Ask him how much he charges. It is by the hour or a flat fee? Is there a charge for the initial consultation? Most mediators will meet with prospective clients for an initial 15-20 minute session at no cost to the parties to explain the mediation process and his approach to mediation. You can meet alone with the mediator or you can bring your spouse or partner.

3. What happens next after the mediation? Ask the mediator whether you need to go to court. Ask him where the courthouse is and how the Memorandum of Understanding will get incorporated into a consent judgment. Also, you might wish to get the mediator to explain whether you need to hire an attorney.

4. How long will the mediation process take? This is one of the most commonly asked questions of parties who are considering family mediation. The answer is, “it depends.” It depends on how well you work with your spouse or partner. Are you “high conflict,”  or “low conflict?” If the parties are relatively “low conflict” and have thought about or discussed the issues before the mediation, it might take just a few hours to mediate the entire dispute. If the parties are “high conflict” and do not communicate well, it may take many more hours to get the parties to first communicate with each other and then to get to the point of discussing the many issues involved in a family mediation. However, it is important to note that every case is different and the outcome depends on the facts of each situation.

5. Can the mediator provide you with materials before the mediation that explain the mediation process so that you can get a better understanding of the process? Many mediators have printed materials or web sites with detailed information to help prospective clients read about and learn about the family mediation process before they choose the right mediator. Mediators who have taken the time to explain the process of mediation in printed form, whether it is on a web site, in books, or in articles will usually be more knowledgeable about the mediation process that those who have not taken the time to do so.

Our team has more than twenty-five years of mediating family and civil cases in Louisiana and Mississippi.   We have written extensively on mediation, arbitration, and ADR issues and teach mediation courses in Louisiana and Mississippi.

What is the best way to ask your spouse for a divorce. Joe and Cheryl Dillon, co-founders of Equitable Mediation Services, discuss this topic at http://www.huffingtonpost.com/cheryl-and-joe-dillon/how-to-ask-your-spouse-for-a-divorce_b_7367650.html .

How important is private mediation services to society? That is an interesting question. For more information on this topic, please see, Mediation services vital as society evolves, an article by Linda Heng which can be found at http://www.straitstimes.com/premium/forum-letters/story/mediation-services-vital-society-evolves-20150521 .

Florida mediator Matthew Brickman of iMediate Inc, one of Florida’s leading family mediators, boasts a 100% settlement rate in mediation. To see how he achieves this amazing success rate, go to http://www.digitaljournal.com/pr/2537095#ixzz3cKrtKiMg .

It has been said that there are three categories of mediation styles, “facilitative”, “evaluative” and “transformative.” For a discussion of these categories and how marital or divorce mediation fits into these categories, go to http://www.huffingtonpost.com/laurie-israel/where-does-marital-mediation-fit-in_b_7221950.html to view Where Does Marital Mediation Fit In? by Laurie Israel.

Pennsylvania lawyer Donald Witmeyer discusses the benefits of family mediation for couples who are separating or divorcing which include less expense, a peaceful resolution, a discreet and confidential process, the fact that there will not be any legal documents or public records of what happened in the mediation, and the facts that the parties will come to their own resolution without a judge imposing a solution. For more information on his article, The Law Offices of Donald Witmyer, P.A., Advocates the Importance of Divorce Mediation Before Bringing the Divorce Case to Court, click on http://www.digitaljournal.com/pr/2559754 .

Attorneys are important during the mediation process. For a discussion of the importance of retaining  experienced matrimonial counsel to educate and consult with you during the process, please see David A. Beaver’s article, Divorce Mediation: Utilizing Attorney Resources during the Divorce Process. The article can be found at http://www.natlawreview.com/article/divorce-mediation-utilizing-attorney-resources-during-divorce-process .

For a discussion of the financial issues that arise during a divorce and that may be handled in a divorce or family mediation such as retirement accounts and pension plans, dividing an individually or jointly owned business, alimony amounts and duration, the living, healthcare and educational expenses of any children,  medical insurance or training necessary for a spouse to resume working, and the tax implications of these decisions, see, Divorce and your finances by Tom Roberts, CFP, afinancial planner and owner of A New Approach Financial Planning in Lakewood Ranch and Sarasota, Florida. The article can be found at http://www.bradenton.com/2015/03/24/5708770/divorce-and-your-finances.htmlAbc  .

The results for the February 2015 Louisiana Bar Exam were released today, April 24, 2015. The overall pass rate was 65.56%. Tulane Law School had the highest pass rate among Louisiana law schools, with Loyola University New Orleans College of Law having the second highest pass rate. LSU Law Center  was third and Southern University Law Center was fourth. The results are as follows:

Overall Pass Rate: 65.56%

Tulane Pass Rate: 80%

Loyola Pass Rate: 70.31%

LSU Pass Rate: 62.07%

Southern Pass Rate: 59.38%

The overall pass rate for non-Louisiana law schools was 65.56%. For more information, visit the web site of the Louisiana Supreme Court, http://www.lasc.org/press_room/bar_results/results/Feb2015/February_2015_school.html