Monthly Archives: April 2011

While the very thought of high conflict couples brings visions of custody battles and long drawn out divorces, divorce mediation may still be an option for so-called “high conflict” couples.  Granted, there is a greater likelihood of mediation breaking down prematurely.  However, a skilled and experienced mediator may still be able to help the high conflict couple resolve their divorce issues.   Sometimes the issues are so charged or the personal conflict so high that the couples cannot sit in the same room as each other.  Still, communication can be facilitated by the mediator through a technique known as “caucusing” where the mediator meets with the parties separately to discuss each party’s position and proposals for the other party.  The mediator is something of a “go-between” with this technique but still uses his or her skills to help the parties frame the issues and focus on resolutions rather than hurt feelings or past transgressions.  The adage, “out of sight, out of mind” does have some truth in such cases, as not seeing the other party can help people stay focused on the relevant issues and not the feelings associated with the other party.

Even if negotiations break down at some point in a high conflict divorce mediation, there is a good chance that some progress has been made toward resolving key areas of disagreement that subsequent litigation may reduced and some of the hotter points of contention cooled a bit.

Mediators are adept at helping each party see the contested issues from the other party’s perspective in order to facilitate compromise.  To the extent the parties are able to  listen and understand each others’ concerns, the larger conflict may even deescalate.

High conflict couples are the least likely to try mediation, but arguably have the most to gain from the experience.  Whatever brought the parties to their current elevated hostility is only likely to get worse with a contentious courtroom battle, and the grudges created and wounds received from that battle can last years and poison any future dealings between the parties.  Mediation can be an opportunity to stop adding insults to the injuries already sustained and allow the parties to move on with their lives.

While most family law mediation firms emphasize mediating family law issues after a divorce, there really is no reason why the same issues (usually property and support)  cannot be mediated before the marriage.

Many people desire to have a prenuptial agreement in place before they get married.  They may be people who have acquired a high net worth when they were single or they may have significant assets they want to preserve for their children or they just may want to have a plan in place on the remote chance the marriage will fail.  Whatever the reason a person may have for wanting a prenuptial agreement, it is something that should not be sprung on one’s prospective spouse on the eve of marriage.  Indeed, such a tactic may be counterproductive because of the potential for causing duress on the other spouse (which may undermine the validity of the document).

If you are considering having a prenuptial agreement before entering into marriage, a better approach would be a mediated prenuptial agreement.  With a mediated prenup the parties can fully participate in the negotiation process, can make full and fair disclosures, and grant each other the leisure to consult with an outside expert, such as an attorney, prior to finalizing the agreement.

California prenuptial agreements have very strict statutory rules that favor full and fair disclosure, active negotiation of the agreement, and sufficient time to reflect upon the prenuptial agreement.  A mediated prenuptial agreement should generally observe these principles and help the marrying parties plan for any future contingencies.

Derrick J. Taberski is an experience family law attorney and mediator.  If you are interested in mediating a prenuptial agreement he would be happy to assist you.