Mediation can bring calm to high-conflict divorce settlements

By Tony Poland, Associate Editor

An acrimonious divorce settlement does not have to end with winners and losers, says Toronto family lawyer and mediator Jennifer Samara Shuber.

Shuber, senior associate with Gelman & Associates, says a skilled mediator can help maintain order during a divisive split and avoid a long, costly court battle.

“In high-conflict relationships, the couple have a lot of hostility between them. There’s a great deal of anger and stress,” she tells “Engaging in litigation and having to prepare court documents — sort of attacking each other — really just further polarizes people. Instead of narrowing the issues, they frequently light everything on fire by increasing the level of conflict and adding to the number of issues upon which they cannot agree.”

The need for calm is especially important when divorcing couples have children to consider, Shuber says.

“There are many contentious cases where children are involved, and a war in court is not going to accomplish anything,” she says. “Children need both their parents, and having them at opposite ends of the spectrum is not helpful because that means the kids are stuck right in the middle.”

Shuber notes some cases may need to be litigated by a judge but “they are few and far between in my estimation because mediators are specially trained in a number of areas that are directly related to high conflict.”

She says the first step to mediation is the intake meeting, where she sits down with each person to “get a sense of where they’re at and to provide them with a forum to unload.” Establishing a line of communication is essential, Shuber adds.

“You have a better shot at being able to resolve something that way because you’ve got this ongoing relationship, and hopefully both people are invested and have trust for the mediator and believe in that person,” she says.

“I try very hard to make sure that nobody loses face so that they’re comfortable in this process, and if they move to a different position that it is not looked at as backing down or giving in but really just expanding the room for resolution,” Shuber says. “It’s a positive thing instead of a negative thing.

“So it becomes a lot of reframing, coaching and caucusing. Knowing if one party is going to blow off some steam, that you need to separate them so they’re not doing it in each other’s faces and amping up the process and causing more stress and anxiety.”

She says mediation can take longer with high-conflict cases because those involved “may need to vent a little bit more than your average client.”

“They really need to feel like they’re being heard by the mediator and that they’ve been getting their point across,” Shuber says.

She says developing a rapport with clients is vital to help “open their minds to the possibility of various options as opposed to their preferred results.”

“Part of the educative component of mediation — which litigation does not have — is teaching people and modelling how to effectively communicate, how to engage in problem-solving,” Shuber says. “Some of that surreptitious teaching can help them break the pattern of creating conflict because you’re role modelling a positive way of interacting.”

Shuber explains that while “mediation is a voluntary process, and everybody’s there because they want to be there,” it doesn’t necessarily mean a settlement can be reached quickly or easily.

“If the parties are not role modelling better behaviour, if they’re not prepared to let go of their ideal goal and canvas different options and possibilities, it’s less likely that you’re going to be able to make a deal,” she says. “There’s got to be some movement in order to make it worthwhile to continue.”

While the benefits of mediation may seem obvious, not everyone will embrace it, Shuber says.

“There is that subset of people who are not going to let go until they have their day in court, whether it is going to accomplish what they hope or not,” she says. “Their preference is to go to court and have a war, so there’s no reason why they would contact me.”

Shuber says her job is to narrow the issues and find a middle ground, not assign blame.

“I’m not going to say, ‘You were a bad boy or a bad girl.’ That is not the purpose of mediation,” she says. “If they’re looking to be vindicated in some fashion, then mediation isn’t the right place for them.

“This is a forum within which to discuss issues and brainstorm solutions and to work toward something that’s going to make sense for your family.”

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