Mediating with a high-conflict ex: when it can work and when it should not

High conflict and unsafe are not the same thing

Mediation often works with a high-conflict ex, because the parties do not have to face each other: each side sits in its own room, or its own Zoom room, and the mediator carries proposals back and forth. Family violence is a different matter. In Texas, a party who has experienced family violence can object to mediation in writing, and if mediation goes ahead anyway the court must order safety measures, such as no face-to-face contact and separate rooms. If you are afraid of the other party, talk with a lawyer about those protections before any session is scheduled.

I am John Polk, a family law attorney and mediator in Dallas with more than 25 years in family law. Lawyers often send me the toxic cases, the ones where the parties cannot stand to be in the same building. Many of those settle. Some should never have been sent to mediation without safeguards in place, and the difference matters. This is general information about the process; it is not legal advice, and if you are in danger right now, call 911.

Why the angriest cases still settle

Anger, distrust and years of accumulated grievances make negotiation hard, but they do not make it impossible. In a high-conflict case, the parties usually agree on more than they think: both want the litigation over, both want the children out of the middle, and both are tired of paying lawyers to argue about who said what. What they cannot do is have that conversation with each other.

Mediation lets them have it through someone else. In a caucus format, I spend the day moving between rooms. Each side can vent to me without the other hearing it, which often has to happen before anyone can think about a proposal. Then I bring back offers stripped of the insults, and I tell each side privately where their position is strong and where it would struggle in front of a judge. People who would never accept a proposal from their ex will often consider the same proposal when it comes from a neutral.

What high conflict usually looks like by the time a case reaches me: hundreds of hostile text messages, a temporary orders hearing that solved nothing, accusations about the other parent's new partner, and two lawyers who have stopped returning each other's calls promptly. None of that, by itself, means mediation will fail. It means the day needs more structure, more time and a mediator who will not be rattled when one side threatens to leave before lunch.

How I keep a hostile session on track

Structure does most of the work in a high-conflict mediation. These are the practices I rely on, in person at my office or over Zoom.

• Separate rooms from start to finish, with no joint session unless both sides want one
• Arrival and departure times staggered so the parties do not meet in the lobby or parking garage
• Confidential summaries in advance so I understand the history before the day begins
• The hardest issue tackled early, while everyone still has energy
• Proposals delivered in neutral language, without the commentary attached
• Breaks whenever a party needs one, and an honest conversation about whether to continue

Your right to object when there has been family violence

Texas law treats family violence as a reason a case may not belong in mediation at all. In a divorce, Texas Family Code Section 6.602 lets a party file a written objection to mediation, before the final order referring the case, on the basis of family violence committed by the other party. Once that objection is filed, the case cannot be referred to mediation unless the other party requests a hearing and the court finds that a preponderance of the evidence does not support the objection. Section 153.0071 sets up a similar objection in custody cases, covering family violence against the objecting party or the child.

If you have experienced violence or threats, raise it with your attorney before a mediation order is signed. You are not being difficult by objecting. The law gives you that option precisely because a negotiation where one person is afraid of the other is not a fair negotiation.

Objecting to mediation does not mean your case cannot settle. Lawyers can still negotiate directly with each other, exchange written proposals and reach an agreement without the parties ever being in a mediation together. What the objection does is make sure that, if a structured negotiation happens, it happens on terms that protect you, and only after a judge has weighed your concerns.

Safety measures if the case is mediated anyway

When a court refers a case to mediation despite a family violence objection, the statute requires it to order appropriate measures to protect the objecting party. The Family Code specifically names no face-to-face contact and separate rooms during mediation. In practice, mediators and attorneys add further precautions so that the person who objected never has to see, hear or wait near the other party.

Mediators who handle family cases are trained for this. Under the Civil Practice and Remedies Code, the additional 24 hours of training required for court-appointed mediators in parent-child disputes include at least 4 hours on family violence dynamics.

• Separate rooms, or separate Zoom sessions with no shared screen
• Staggered arrival and departure, or remote participation for one party
• No direct communication between the parties at any point
• Each party's attorney present or reachable throughout
• A clear plan for ending the session if anyone feels unsafe

A second safeguard after the agreement is signed

A mediated settlement agreement in a Texas custody case is normally binding once it meets the statutory requirements, and a party is entitled to judgment on it. The Family Code carves out an exception. Under Section 153.0071, a court may decline to enter judgment on a mediated agreement if it finds both that a party was a victim of family violence and that this impaired their ability to make decisions, or that the agreement would let a person with a history of physical or sexual abuse, or one required to register as a sex offender, live with the child or have unsupervised access, and that the agreement is not in the child's best interest.

That exception is narrow, and it is not a reason to sign an agreement you have doubts about. It does show how seriously Texas law treats the risk that a frightened parent will agree to something unsafe just to make the case end.

When a mediator should call it off

A good mediator does not push every case to a signature. The Supreme Court of Texas Ethical Guidelines for Mediators say a mediator should postpone, recess or end a session if it becomes apparent that the case is not appropriate for mediation or that a party is unwilling or unable to take part meaningfully. If one party is intimidating the other, even by text message from the next room, or if a party is clearly agreeing to things out of fear, I stop.

Confidentiality has limits too. Communications in mediation are generally confidential under Texas law, but that rule does not affect the duty to report abuse or neglect of a child. Everyone in the session should understand that from the start.

Ending a session is not the same as giving up on the case. When I stop a mediation, I tell both attorneys, without revealing confidences, that the session could not continue productively. The lawyers can then ask the court for whatever protection or ruling is needed, and the case can return to mediation later if circumstances change and it becomes safe and appropriate to try again.

Preparing when you dread facing the other side

Preparation can take some of the fear out of the day. Talk through these points with your lawyer, and with me if I am the mediator, before the date is set.

It also helps to know what the day will feel like. You will spend most of it in a room with your own lawyer, talking to me when I come in. There will be long stretches of waiting while I work with the other side. Bring something to eat, something to read and any documents you may need, and remember that you are allowed to ask for a break, to talk privately with your lawyer or to stop.

• Tell your lawyer about any history of violence, threats, stalking or control, even if it seems old
• Ask whether a protective order or a written objection is appropriate before mediation
• Ask for remote participation if being in the same building is too much
• Decide in advance which terms you need for safety, such as exchange locations or supervised visits
• Plan who will be with you or nearby on the day

Keeping the peace after the case ends

In a high-conflict case, the decree rarely ends the conflict. Exchanges, holidays and school decisions keep putting the parents in contact. Building a dispute-resolution path into the agreement, such as mediation before any new filing or the appointment of a parenting coordinator or facilitator, can keep the next argument out of court. I explain the difference between those two roles in parenting facilitator or parenting coordinator.

If you are trying to decide whether a particular mediator can handle a case like yours, my guide on questions to ask a family mediator covers what to listen for, and how mediation ends a stalled divorce or custody case walks through the day itself. For parties and attorneys in Dallas-Fort Worth with a case that will not settle, the first call with me is about safety and structure before it is about scheduling.

Questions people ask me