3 Scenarios Where Divorce Mediation May Not Work

May 9, 2023
By Alternative Divorce Solutions

At Alternative Divorce Solutions, we are proud that we have a 97% settlement rate for our divorce mediation cases. This means that 97% of our clients who start the divorce mediation process will successfully end the process having reached a mutually agreeable settlement that gets formally filed with the court in Orange County. While we are grateful for our high rate of success, we still look at our 3% as something we can work to improve. As such, we spend a lot of time in training seminars and team meetings learning about and dissecting the reasons why some of our cases do not settle. Unfortunately, often times it boils down to this simple fact – divorce mediation may not be right for everyone.

Reason 1: Divorce Mediation will not work when there has been domestic violence.

Domestic violence is not only a source of physical danger for the victim, it is also a source of psychological danger. Research shows that the syndrome associated with domestic violence can actually impact the victim’s ability to make sound decisions for his or her future. Think about this fact. Many domestic violence victims who actually report abuse to the authorities recant their accusations later on. Studies show that this is a result of the syndrome associated with the abuse. That being said, when you couple the side effects of domestic violence with the fact that both parties have to be their own advocates in the same room, logic dictates that mediation is not a great fit. I will never forget a case I had where domestic violence was only revealed to me at the very end of the settlement process. The victim had finally obtained the counseling and support she needed to come out and tell the world that she had been abused. Certainly, in that case, I advised both parties to seek the advice of independent counsel to bring their case to a close.

As divorce mediators, we are trained in balancing the disparities in power between couples. Often, the dynamic of a typical relationship has some inherent power imbalances. However, in the case of domestic violence, due to the deep psychological wounds and threat of physical danger, the mediator should not attempt this balancing act. In these cases, it is appropriate to refer these spouses to professionals who are fully equipped to manage the situation and personalities involved. This could be independent counsel for each party, as well as trained counselors and even potentially recovery programs.

Reason 2: Divorce Mediation may not work when there is a high conflict personality involved.

The term “High Conflict Personality” is tossed around a lot in the legal world. Our team recently attended a training, where Bill Eddy (founder of the High Conflict Institute) went into depth on this topic. In essence, a high conflict personality is present where there is a person involved in the case who may have some form of mental illness, who is also having a hard time disengaging from the conflict. This person is so wrapped up in the conflict that he or she cannot be separated from it. In addition, no matter how much the mediator lends an ear to listen, this person never feels heard. Neuroscience research indicates that part of the cause for this problem is underdevelopment in the Corpus Colosseum, a part of the brain responsible for connecting the logical brain to the emotional brain.

Whatever the reason for the development of the high conflict personality, their inability to view their own role in the conflict makes them extremely difficult to work with in mediation. Now, I say that divorce mediation may not work in these cases. Research and our own experience has shown that these cases can be settled in some circumstances. However, others do not settle. In addition, the ones that do take about three times as long to reach the settlement phase as any other case. A trained divorce mediator should be able to screen for this type of personality and inform the clients that divorce mediation may not be a good fit. If the parties insist on moving forward with divorce mediation, it may be wise for the mediator to employ special techniques to communicate with the high conflict personality, as well as bring in mental health experts into the divorce mediation process.

Reason 3: Divorce Mediation will not work where there is unwillingness to compromise.

There are so many reasons why people get divorced. To name a few, there is infidelity, financial trouble, lack of communication, lack of intimacy, or differences in core values. Each of these reasons brings a lot of different emotions to the table. Like grieving any loss, couples going through a divorce may experience denial, acceptance, anger, sadness, and everything in between. Often, when someone is too angry, too sad, or even too afraid, they may be unwilling to make a compromise. Keep in mind that in mediation, we are always trying to create a win-win for both spouses. That being said, however, that type of outcome will probably require some compromise on both people’s part. If one person comes to mediation with an “it’s my way or the highway” attitude, there is not a true settlement discussion at play. Fairness means that both parties are flexible and willing to listen to one another’s needs and concerns. Therefore, if one person is totally unwilling to compromise, even the best divorce mediator in the world will not be able to force their hand into settlement. Before making a commitment to start the mediation process, make a list of your “negotiable” items and your “non-negotiable” items. This will help illustrate where you are willing to bend to make a deal, and where you are not willing to budge for your own sake.

Reason 4: Divorce Mediation may not work where there is severe mental illness or incapacity.

As a divorce mediator, I can appreciate the importance of the decisions made in the negotiation process of divorce mediation. The couple sits down in our office for two hour increments and decides things like when, where and how they will spend time with their children, how to divide their assets and debts, and how much support they will need to make ends meet. These decisions, in and of themselves, can be very stressful and taxing on a person. So, I have created a standard I go by – If the person is not in a state of mind that they could buy a car in, they are not ready to make a decision in mediation. For some people who suffer from severe mental illness or incapacity, this decision making frame of mind may never occur. That is when mediation may not work. If, however, a spouse has a mental illness that is under control through medication and counseling, it may be appropriate for that spouse to try mediation. If someone is just worked up or upset, a 10-15 minute break may suffice to bring them back to a clear mental state. Again, this is very case specific. When you first meet with your divorce mediator, be sure to disclose any history of mental illness or incapacity. This is important information.

At Alternative Divorce Solutions, we pride ourselves in our high settlement rate. When we commit to work with a client, we give our pledge to be by their side until the case settles. When settlement is not possible, we refer our clients to professionals that are trained and equipped to deal with the circumstances at hand.


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