At first blush, it would seem litigation, and not mediation, would be the preferred route if one or both of the parties are combative. However, in my experience, mediation can often still work.

First of all, all the usual reasons for preferring mediation over litigation still exist, e.g., expense, comfort, speed of the process, etc. With combative parties, I still suggest pursuing mediation before litigation for those reasons. There is no reason why a mediator is not as equipped as a judge to deal with this problem. Your judge will have no time for the obstreperous party. The judge will simply threaten holding that party in contempt, and many judges mean it and will incarcerate the out-of-control party. But where are you then? Sure, the judge now looks upon that person with a jaundiced eye, but this does not change how the law applies to the issues (except perhaps custody).

I have structured solutions such as giving a particular party individual time before and after sessions. This allows the party to vent and gives me more time to explain how the process works, and why outbursts cannot be tolerated. Individual time can also be afforded the other partner. I will explain to both parties that I am not a therapist. I will not spend time allowing a party to vent and vent. If a party persists, I suggest he/she might see a review attorney or a therapist to help with their issues.

I also instruct the parties not to discuss our process outside of the sessions if such discussions are only leading to more arguments. Such arguments can erase the gains we have achieved in the sessions.

The foregoing is only a partial list of reasons why high-conflict clients should still explore mediation, but I am not naive. After a career litigating divorce cases, I recognise that sometimes only a judge can provide the ultimate solution. If that is how a party or parties wish to spend their hard-earned money, so be it.

If you wish to schedule an initial consultation please contact me at 212-605-0435 or 516-280-3123.