How Mediation Can Help Manage Divorce Conflict


(Last Updated On: August 29, 2021)
Mediation Can Help Manage Divorce

Dynamics of Conflict and Resolution, Part One: Managing Conflict Through Mediation

As Family LawyersOpens in a new tab., we walk intrepidly into the fire of human relationships, often without our asbestos suits.  We are schooled in the law and the procedures for finding resolution in the courts, but our education about relationship dynamics and resolution outside the courtroom is gained through hard-earned experience.  This article is first in a three part series that will attempt to shed some light on the human dynamics of the day-to-day work we engage in with clients, opposing counsel and ourselves. Part One, Managing Conflict, will offer strategies for structuring our daily interactions to more effectively manage conflict. Part Two, Structuring Settlement, will be published in the next issue of the Family Law News. It will focus specifically on the dynamics and strategies for settling cases and keeping them settled.

Managing Conflict

As a family mediator and private judge, I find it very important to lay the groundwork for the case early on and to set reasonable expectations for the parties in terms of the conflict they will experience in the process.  Too often couples and their family lawyers come to mediation with an expectation that there will be no conflict, no painful emotions or bad behavior, and that the process will be amicable and always reasonable.  It reminds me of young couples expecting their first child starting their childbirth classes and planning for that “Hallmark” moment of holding their newborn.  Instead, in both cases there is a lot of blood and guts to get through to reach the desired endpoint of amicable resolution, and the couple needs to be prepared for that as well.

Lawyers, as the managers and family mediators of conflict, whether in adversarial, collaborative or mediative capacities, must be familiar with some of the dynamics and drivers of conflict and have strategies to manage them.  This article will explore and suggest ways to address the three potential drivers of conflict: relationship dynamics, difficult personalities and personal process.

1. Relationship Dynamics

The parties are undergoing a major life transition, accompanied by pain and loss, and it is to be expected that they may not be at their best during the dissolution process.  Even for very healthy individuals, the restructuring of their most intimate relationship to an adversarial or, at best, a business relationship, is hugely disorienting.  We can assist our clients in making this transition by helping them to identify some of the dynamics they are experiencing.

Isolina Ricci, Ph.D., of Mom’s House, Dad’s House fame, is a well-recognized divorce and custody consultant based in Northern California. (See www.isolinaricci.comOpens in a new tab..) In one of her many presentations on custody issues, she described the characteristics of an intimate relationship and compared them to the characteristics of a business relationship.  Ricci explained that many separating couples, rather than moving out of their intimate connection, often move from positive intimacy to negative intimacy.

It is important to understand that the negative intimacy stance while escalating conflict and exacerbating misery, keeps the parties connected and that may be worth the conflict and misery, for them.  What we can do is recognize the characteristics of negative intimacy and work to move the parties toward a business relationship, with lower emotional involvement, lower expectations and assumptions and more structure. We can assist the parties in creating the structure of a business relationship—we do it all the time.  Meetings are scheduled in advance, take place in a business or at least neutral location, have an agenda and focus on the agenda, and generally follow business etiquette and formalities.

It is important for the professionals to model functional business relationship rather than mirroring the negative interactions of our clients.  When we find ourselves getting into conflict with an opposing counsel, we can call upon the structure of the business relationship to create more formality and decrease tension.   We can re-emphasize business protocol to help us maintain our own professionalism.  Ultimately, we can resort to the court to impose structure on the process.  Litigation is a formal process for resolving disputes and will structure the relationship if we are unable to do so on our own.

In the work of Parenting Coordination, a similar approach to manage high conflict families is referred to as “structured disengagement”.  Sullivan, Matthew J., Ph.D., “Coparenting and the Parenting Coordination Process”, Journal of Child Custody, Vol. 5 (1/2) 2008.  Also available through CaliforniaParentingCoordinator.com.Opens in a new tab.  The model is to take high conflict parents and to minimize the amount of contact or engagement they have with one another and to therefore minimize the conflict.  They may continue to harbor ill feelings toward each other but if they are not in contact, the level of actual conflict is reduced.  (Whether to include chart?)

We are the experts in this field and we need to provide this structure for our clients, to manage their own reactions as well as to protect them from behavior or outbursts from the other side.

Some strategies for disengagement are:

  • Limiting contact.  (Caucus rooms for meetings, Formalities for any party meetings)
  • Structuring communications.  (Limiting communications to certain topics, Specifying times and means of communications—telephone, email, etc., Communicating separately with family mediator)

In order to effectively limit interaction and structure communication between the parties, we insert a third party intermediary who is interfacing with each party separately.  This may be a family mediator, or it may be a process of working with family lawyers whether through a collaborative or adversarial process.  When you and your opposing counsel are the ones in conflict, the intermediary is the judge or family mediator or other chosen neutral to assist you with your communication and resolution process.  This dynamic will be explored in more depth in the follow-on article on Settlement.

It is also important to note that couples can move more easily from high-conflict to parallel parenting and then may eventually move to cooperative parenting.  Similarly, couples may be able to move from an intimate relationship to a business relationship and then eventually (when the case is finished) to friendship.  It is much more difficult to move from high-conflict to cooperative or from intimates to friends, and it is not realistic for us or our clients to expect this Hallmark transition.  It will come if and when the parties have done the hard work of creating a functional business or co-parenting relationship with the support of thoughtful counsel.  Needless to say, when children are involved the ability of the parents to at least establish a functional parallel parenting relationship, is critical to the long-term impact on the children.

Dynamics of Conflict and Resolution

This is the second part of the article article which focuses specifically on the dynamics and strategies for settlement of cases.  Divorce conflict, difficult divorces and strategies for settling are especially important considerations when dealing with a difficult personality such as: Narcissistic, Dependent, and Borderline. Part One can be found be clicking hereOpens in a new tab.

B.  Difficult Personalities:  There is an expression that Family Lawyers see good people at their worst, while Criminal Lawyers see bad people at their best.  Largely, I expect this is true, but there are also times when we see “bad people” at their worst.  The dynamics of the changes that people are attempting to navigate can account for a majority of the conflict that we witness, but occasionally, we come across people with deeply embedded personality structures that contribute to the level of conflict.

When we talk about “personalities”, we refer to the presenting demeanor and attitude of the individual.  When psychologists talk about personality, they refer to psychological structures and strategies for navigating in the world, “pervasive patterns of thinking, feeling and behaving”.  Psychologists recognize certain ingrained, dysfunctional personality patterns that are pathological, vulnerable and maladaptive.  The central problem with these individuals is an inability to accurately perceive themselves and their relationships, which can make working with them very challenging.

 Three of the most common Personality Disorders that we see are NarcissisticOpens in a new tab., Dependent, and Borderline.  It is important that we not ascribe labels to our clients without the full knowledge and understanding of psychological assessment, but being able to identify the general characteristics of these three personality types (whether they rise to the level of a disorder or not) will assist us in managing the conflict in our cases.

Characteristics and why these clients can be difficult to represent.

  • Narcissistic:  Presenting as very controlling and arrogant.  Huge sense of entitlement.  Lack of empathy for others.
  • Dependent:  Presenting as passive and socially accommodating.  Unable to take responsibility for decision-making.
  • Borderline:  Presenting as delightful, adoring, connecting, but can turn quickly to hostile, hyper-critical and rejecting.  Unpredictable.

It can be very helpful for the Family Law family lawyer to be familiar with these personality types, to be able to identify how they might be contributing to difficult situations. Opens in a new tab. This is solely for the benefit of the family lawyer, in the sense that I am NOT suggesting that you try to educate or rehabilitate these personalities as they become apparent to you.  The prognosis for change for someone with a personality disorder is not good.  But it can be very helpful to you to understand and to make an informed decision about continuing in the case.

 C.  Personal Process: What you bring to the table.  Generally, conflict in our cases is all about the other guy, our demanding client, that difficult opposing counsel, but of course, there is always the element of how and why this particular person gets on our nerves. At this juncture, I want to highlight two aspects of self-awareness that can help us manage high conflict situations: Self-care and Self-reflection.

 1. Self-Care:  Secure your own oxygen mask first.

An important skill in being adept at managing conflict is the ability to respond, not react.  In order to act in a more skillful manner, we need to be relatively calm and centered, which requires attention to our own self-care.  If we are tired, hungry, sick, or stressed, we are much more susceptible to reacting than responding.  When we find ourselves behaving in ways that we would like to consider as uncharacteristic, being curt, sarcastic, rude or angry, the following checklist of self-care may help determine whether we are in a position to act on our better instincts or are acting out of a deficit.

a.  Physical basics (food, sleep, exercise).

b.  Centering (breath, posture, physical cues).

c.  Managing Calendar

Time in the office (Allowing space between appointments, time to respond to email and voicemail, break for lunch.)

Time out of the office  (Attending to personal life and priorities, vacations, respite.)

d.  Managing Communications (Rather than allowing them to manage you).

Email, voicemail, fax, cell phone, blackberry.

 2. Self-Reflection:   Other than taking care of our personal needs, we may also succumb to particular personalities or problems because of a personal connection to the situation that we may not even be aware of.  When we find ourselves in a difficult case, it is worth examining whether there is some dynamic or personality in the case that is pulling us off-center.

a.  Pulls.  Some clients will pull us off center, drawing us in by idealization of our professional abilities or presenting vulnerability and need for protection.  We can also be drawn in by celebrity status, great wealth or a sense of obligation.

b.  Pushes.  Other clients will push us off center but keep us engaged through devaluation, demands, threats, criticism and also money.

In these situations, we are working out of inflation of our own abilities or fear for our own reputation, and we will not be at our best.  When we recognize these influences, we may consider whether we can effectively represent the client and whether to continue in the case.  It is also helpful in these situations to seek the support or consultation of other professionals to help provide an objective view of the situation and our role in it.

            D.  Conclusion:  Managing conflict is a skill that can be cultivated.  When we do not act as thoughtfully or skillfully as we would like, we tend to feel that the situation is beyond us and that we are somehow victims of the situation.  If we recognize that there are elements of the conflict that can be understood and interventions we can make to manage the conflict, we can begin to focus on learning the skills to do so.

We come to this work with a desire to help people through a difficult life transition and to create a professional livelihood for ourselves.  We will find both aspects of our work more satisfying if we can make sense of the dynamics around us and contribute to a more rational and more compassionate process for all involved, including ourselves.

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This is a guest post by Sherry Cassedy, J.D.  Sherry Cassedy, JD, MA, is a Certified Family Law Specialist practicing in Palo Alto, CA.  After 20 years of practice in family law, Sherry now devotes her practice entirely to mediation and private judging.  She was recently named the 2008 Fellow of the Year by the Northern California Chapter of the American Academy of Matrimonial Lawyers.  Her website can be found at 2thresholds.comOpens in a new tab..

Deborah Moskovitch

This blog post was written by Deborah Moskovitch the author of "The Smart Divorce", the catalyst for this website. This evergreen book covers how to manage the divorce process for a less painful result.

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