Strategic Mediation: Joe Dillon on High-Conflict Divorce Cases

Host: Lisa, Strategic Mediation Expert
Guest: Joe Dillon, Equitable Mediation Services

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Lisa: We’re going to be talking about mediation. I know we might have a very hesitant, doubtful audience, but in our experience exclusively dealing with high-conflict cases, we’ve found mediation to be extraordinarily effective. Before you even introduce yourself, Joe, what percentage would you say mediation is a better option than litigation?

Joe: If I had to answer that question, I’d probably say 90 to 95%. If people are willing to disclose and willing to engage in good faith negotiation, no matter how high-conflict you are or how angry you are, mediation can work. It’s when you get people who are dissipating assets, hiding money, or being abusive – emotionally, physically, or financially – that’s really when you need the protection of that courtroom, lawyer, and judge.

Unfortunately, we see about 2% of cases go to litigation. That tells me if you’re willing and able, 98% of folks out there could actually wind up mediating or engaging in collaborative divorce where they work with attorneys in real time rather than battling it out in court.

Lisa: Even those cases you mentioned are the only cases we deal with, and we still find that depending on the situation, many do really well outside of court. Even if you’re dealing with domestic violence, it’s not fair that you should be limited only to litigation because that costs more money and you have less power. We always say it’s worth a try. A lot depends on your perspective and attitude going in – if you already say it’s not going to work, then it probably won’t work. How about you officially introduce yourself?

Joe: Thanks for having me, Lisa. I’m Joe Dillon, a divorce mediator and founder of Equitable Mediation Services. We practice in six states here in the US. I have an unusual path – my background is an MBA in finance and negotiation, so I deal with people with complex financial situations, financial infidelity, and financial abuse.

My parents are actually a great example of what not to do because they litigated their divorce and were beyond high-conflict to the point that my dad was restrained in the courtroom because he was going to go after the judge over the child support amount. I sat in the back of the courtroom and watched this unfold.

Lesson to viewers: if you have kids, don’t bring them to court – really bad idea, scarred for life. But also, you can do this in a better way. No matter how angry or high-conflict you are, the whole idea is to get through this process so you can start emotional and financial healing and move on with your lives. If you have kids, be better co-parents.

Lisa: Let’s say you have a person dealing with a very difficult ex and you have them in mediation. Are there things you as a mediator do differently with cases like ours?

Joe: Certainly. When you have folks who are amicable, it’s easy for them to get along, communicate directly, and decide things together. In high-conflict cases, we do a lot more options creation because sometimes people get so mired down in details that conversations spiral off track.

Rather than deciding right there in real time, I’ll create a number of options with them. For example, with a house, I know there are seven different ways you can handle a house in divorce. Most people don’t think of that. I’ll say, “In your situation, does this make sense? Does this make sense?” We’ll limit it down to maybe two or three options.

Then I’ll say, “I want you to independently go away and think about these options and prioritize them.” What often happens is people don’t realize they might actually be more in agreement than they think – they’re just so angry at each other. We in our profession call it “violent agreement” – you’re screaming so much at each other you can’t hear that you both want to sell the house.

When we get them to do that independently and they come back, we lay their choices up on the screen and say, “Well, your number one choice is sell the house and your number one choice is sell the house. I guess we have agreement.” It sounds like a game show – “Survey says!” – and it is weird.

My background is in negotiation, and I’ve been studying negotiation for about 30 years. There’s a reason they call it “game theory” – it is, in a way, a strange, dysfunctional game. Not that divorce is a game by any stretch, but you’ve got to think about choices, options, winning, losing, giving, and getting.

We try to get people to avoid the conversation in the session, go away and think about what they want, put all the stuff they agree on in the corner – because usually these people agree on most things, they just don’t realize it – then spend our time on the one, two, or three issues that might really upset things.

Lisa: I love that phrase “being in violent agreement.” We work a lot with our clients on strategic communication and negotiation in writing before they even get before a professional. One of the things that’s the backbone of communication is something we call the universal agreement – we both want the same things. We try to align it with some value of the court. For example, neither of you wants to waste a ton of money. Most people won’t say, “No, I don’t care about money.” You anchor them to “we both want to save money, so let’s keep doing this instead of jumping into the courtroom.”

Joe: Absolutely. As a negotiator, one thing you do is always ask questions you already know the answer to – you don’t want to be surprised. By gaining momentum, I’ll ask someone, “Do you love your kids?” What are you going to say – “No, they’re terrible little children”? We have agreement that you both love your kids. Great! Look at us agreeing. You build up on the smallest things to create goodwill and momentum.

When we talk about money, you can say, “It’s Johnny or Alicia’s graduation day, senior year, and you’re standing there saying, ‘I’m so sorry we had all this money in a 529 for you and were going to pay for your whole college education, but we chose to litigate our divorce and spend $200,000, so now you’re going to have to get loans and apply for scholarships.'”

You try to put people in that future space to say this is what will happen from personal experience – it happened to me. Don’t think you’re going to be different. If you can get people out of the current space and thinking about downstream impact, that helps a lot.

Lisa: I remember from my own mediation experience years ago, the mediator served as this authority figure – almost like he was the one who would say what the judge would say. When my ex said something like “I don’t think I should pay child support unless the kids and I have a great relationship,” the mediator said, “That’s not going to fly at all in court, so let’s come up with a number.” Had I said that myself, he wouldn’t have listened, but I liked having someone there who had that authority but wasn’t forcing anyone to do anything specific. Can you talk about your role?

Joe: People ask what my role is, and I think of it as part guide, part referee, and part cheerleader. As a guide, I’m experienced in these issues in these particular locations. In a New Jersey divorce case, I’ll say, “This is how the guideline works. I can’t guarantee what a judge will say, but is there any good reason you have that will make the judge say, ‘Oh yeah, you’re right, you can ignore the guideline’? I’m not seeing it.”

As the referee, I get “We decided I’m not paying child support.” That’s great that you decided it, but you’re not the authority. Now as the referee, I have to enforce the rules – blow the whistle, throw the flag.

As the cheerleader, you’re trying to encourage people to keep engaged, keep talking, keep being involved because their communication has been dysregulated – either they’re ignoring each other or screaming at each other. That was my house – periods of intense screaming and then months of silence with my parents.

You’ve got to keep them positive, engaged, talking. By understanding the rules of engagement and how this might shake out, you can convince them why bother getting that answer when I’m giving it to you now as part of the process for less money. It’s a delicate, gentle reeling-in-the-fish kind of thing.

Lisa: Speaking of rules, I remember from when I used to teach high school – in the first week, instead of me dictating, we’d figure out class rules together. As you know, things can get very intense and sometimes the process gets deflected because somebody wants to blame about why we’re here and how this happened. How do you deal with someone who keeps shifting the spotlight from progress to the past?

Joe: I was never a high school teacher, but I apparently engage in the same process. Before we even mediate, we have a one-hour strategy session where we lay down the rules. We put up on the screen a series of rules that talk about the difference between mediation and therapy. As we say, mediation is therapeutic but it is not therapy. We want you to have a cathartic moment, come to agreement, and move forward.

One key tenet of mediation is it’s a forward-looking process. I have a favorite quote by Bird Bagot that I put up on the screen: “View life through the windshield, not the rearview mirror.” That’s always our totem.

We talk about rules of engagement in mediation – taking notes, confidentiality, being respectful. We talk about the role of attorneys because in high-conflict cases, there may be a need to involve attorneys outside the process. We don’t require you to have an attorney, but we highly encourage you to have one if you feel the need.

I had a therapist colleague who taught mediation with me at Northwestern University. She was an experienced therapist with 40 years in the business, and she would say to mediation clients, “This sounds like an old argument. How has that been serving you?” It’s a little mind shift – has this gotten your relationship on track? Has this improved your lives? Do you feel better every time you have this argument?

Of course they’re going to say no. Maybe this isn’t serving us – why don’t we try to move forward? The focus is constant moving forward. My job is to help you negotiate and craft an agreement that’s going to govern your co-parenting and financial relationship from day zero moving forward.

Lisa: People also have the idea that they go to one mediation and if everything’s not resolved, then it’s a failure.

Joe: Right! To give you an idea, a lot of the cases we work with are longer-term marriages, more complex financial situations – 20-year marriages. I’ll say, “You guys have been married 20 years, probably dating for some period prior, so you’ve managed to create these legal, financial, and emotional entanglements for 25 years. Do you really think it’s going to take two hours to unlearn that?”

We have a lot to unpack. For our clients, usually in high-conflict situations with our two-hour mediation sessions, you’re looking at probably five to eight sessions plus the one-hour strategy session. You’ve got to be willing to put in a full work day to engage in this.

If you’re waiting for a judge or court or your lawyers’ schedules to sync up, you’re looking at two to three years. If you’re meeting with me five, six, seven times every other week, you’re looking at two to three months. If I’m mired in dysfunction, pain, and suffering, I want to get out as soon as I can.

You have to be willing to put in the time and do the work. You’re paying lawyers and paralegals money to go get your tax returns and bank statements – I can give you a list and on a Saturday afternoon you can do it for free. Do the work, give it to me, do the discovery, do as I ask, and engage in sessions regularly.

Lisa: You said your sessions are two hours. Some of my favorite mediator friends also say sessions should be short, but sometimes our clients are stuck in these 9-hour mediation sessions, which was a complete waste of time. Why do you do two hours versus full day?

Joe: We had dabbled with full day, and sometimes that works for people who travel a lot, but it really only works if they’re amicable and prepared. Divorce by its very nature is a conflict – by definition, we don’t want to be married or one of us doesn’t want to be married.

Having a full-day session is exhausting for both the people and the practitioner. My clients are counting on me to be my very best. I take my job seriously because I want to be that strong presence, guide, authority figure, and emotional support because you’re going through a tough time. But I’m human – after three, four, five hours, this piles up on me as well. There’s a point of diminishing returns.

I like to go to the gym – that’s how I blow off steam. Every personal trainer or physiologist will tell you that you go to the gym for about an hour, and when you’ve broken your muscles down from lifting weights, the growth happens in the rest period when you sleep that night and relax tomorrow. The growth doesn’t happen in your sixth hour of bench presses – you’re just hurting yourself.

Two hours is enough to have good momentum, good progress – warm up, recap, substantive progress, cool down, what do we do next session. It keeps people in a good meter. We can take a break at the one-hour mark for coffee or a walk. We’ve tried shorter and longer – two hours seems to work best.

Lisa: I’m thinking about a situation with a client where they went to mediation, agreed on a few things, but didn’t flesh out the details of a full parenting plan. Our client’s attorney said, “You have to sign this mediation thing that’s skeletal,” and I’m thinking, when are we going to get the parenting plan? How do you deal with that catch-22 – if the client signs it, maybe they’re stuck with just that, but if she doesn’t, she has to go to court?

Joe: A good mediator – and I like to think of myself as one – is not going to let you get out of session until you have a fully fleshed agreement. I use a little levity to diffuse tension. I’ll say, “Listen, I’m a nervous person. I worry about you when you’re gone. Do this for me – could you just flesh this out with me? Just do it for me so I can sleep tonight.”

I truly am the kind of person where at 4 in the morning my wife will be like, “What are you doing?” I’m like, “They didn’t finish the parenting plan.” She’s like, “It’s 4 in the morning, what are you talking about?” I’m worried.

I like to poke fun at myself and say, “What would make me happiest is if when we’re done with mediation, you never look at this document again because you’re co-parenting so well that you don’t need to turn to page 12 to see that it’s 5:15 and you’re supposed to be at McDonald’s dropping the kids off. That’s my dream – to basically make myself obsolete.”

But flesh it out – it’s there if you need it. You’ll save yourself time, money, and heartache. Life changes, new people get involved. Not to be callous, but my hope is that this too shall pass and you will find happiness, perhaps with someone else. You’re going to want to know if it’s Thanksgiving and you’re going to your new spouse’s house 400 miles away – do you have the kids on Thanksgiving? When does Thanksgiving start and end? Do you travel Thursday morning or Tuesday afternoon? These are important details.

Lisa: When you’re talking about having it in your filing cabinet, remember this audience – they all have it attached to their laptop, it’s on the desk next to them.

Joe: My hope is that one day you’ll be like, “What’s this?” My wife was divorced before, so one day we were moving and going through papers in the safe. I found her divorce decree from 20 years ago and was like, “Oh my god, here’s your divorce decree!” She’s like, “Oh, I was wondering where that thing was.” That’s my goal for you.

Lisa: You talked about things people can do by themselves ahead of time to prepare properly for mediation.

Joe: You can gather documents if that makes you feel better, but the challenge is if you’re in a high-conflict situation and someone finds you asking for pay stubs or tax returns, that may derail progress and harm things more than help.

What you can do, however – I’m a firm believer in budgets. You’re engaging in what will invariably be the single most important negotiation of your life because what you do now will impact you for the rest of your natural-born life. Wouldn’t you want to take time to get prepared and know what you’re going to ask for?

Think of a little kid who says, “I want to eat 20 cookies.” As a parent, you say no. What’s the first question? “Why?” Because I said so. Why are you asking for $5,000 a month in alimony? Because I prepared a budget. If you’re going to buy a house and I need to rent an apartment, here’s the cost for a three-bedroom in the same school district, here’s my car payment.

You’re removing emotions from the conflict and using data. In high-conflict situations, it’s going to be “You always spent my money” – no, here’s the data. When you’re having these conversations, this is why I need this much child support, this much alimony. Same with property division – “I decided I’m keeping the house.” What does that mean to your entire financial future? Don’t make these decisions in a vacuum.

Make a list of all your assets and liabilities because you want to remove emotion from the conflict and negotiate as a business transaction. In high-conflict divorce, emotions are the oxygen that feeds the fire. Remove the emotions, remove some of the oxygen, and the flames lower.

Really, we’re talking about negotiation – what will you get, what will I get, what will you give, what will I give. Go on apartments.com, search three-bedroom apartments in our town, knock yourself out. Come back next session and tell me what you found if you disagree with your spouse. The idea is data, information, not emotional decisions, but data-driven, analytical decisions.

Lisa: What you’re saying aligns with what we do – we tie it to best interest or custody factors. The reason you need to figure out that data is you’re thinking about your kids’ routine. If they’ve been going to the same school for years, you have to live in the same area because if you don’t, that’s going to disrupt their routine.

Joe: That’s the key – we’re in this together whether we want to be or not. We are married, still legally bound to each other, still parents. In high-conflict cases, a lot of that conflict comes from one person wanting the divorce and the other one doesn’t. The reluctant spouse digs in and makes it as difficult as possible – “Well, you want the divorce, you figure it out.”

As the guide and cheerleader, you’re trying to engage them. Isn’t it in your best interest to ask for what you want and get what you need? We need to know what that is, otherwise you’re going to have something dictated to you, especially if you wind up in court.

Judges are people who just decide things. I’ve had many friends go through divorces – it’s completely arbitrary. Sure, there are guidelines and rules, but the judge has a lot of discretion. In California, for example, the judge can decide we’re not going to put a duration on alimony if you’ve been married 10 years or more, and you’re going to come back when I say so. Do you really want that?

Engaging people and explaining the downside – you’re going to have a settlement dictated to you or waste a lot of money – definitely helps in high-conflict situations.

Lisa: What you described with the judge, I always think of The Wizard of Oz – you’re going in, you’re Dorothy, that’s the Wizard, you don’t get to decide once you’re in there. One of the options is to try to stay out as much as possible and realize it is a process.

Joe: You got yourself into this, so get yourself out of it. You have to have a role in it. You can’t just sit there, fold your arms, hold your breath, and pout. You were adult enough to get married and perhaps have children, so now you need to be adult enough to end your marriage and move forward with your life.

I remind people that my number one goal in mediation – and forgive me for being direct – is to piss both of you off slightly. If both of you are slightly angry with me when this is over, I’ve done my job. If one of you says, “That was the best divorce ever,” chances are the other one is like, “That guy really screwed me.”

My best hope is that both of you are slightly upset with me. Engage with me, help me do this, get through this process, put your emotions aside. I know it’s easier said than done, but working with folks like you, therapists, divorce coaches – the mediation or litigation process is not the time to do the emotional work. Deal with the emotions outside the process so you can come in calm and centered. Even if you improve that much, it increases your chances of avoiding litigation.

Lisa: Does a judge take into consideration what you agreed to in mediation when they make a decision?

Joe: If you’ve agreed to stuff in mediation, the whole idea is not to blow that up. We’re really narrowing it down – think of it like a funnel. In mediation, we want to get you from here to here so you’re focusing on one thing in court if you wind up there.

I don’t think a judge has any interest in blowing anything up if people have agreement. In states like New Jersey, they have an early settlement panel – if you can’t work it out in private mediation and try to engage with the court system, you’re going to court-ordered mediation. It’s three people – usually a lawyer, parenting coordinator, mental health professional, maybe a finance person – who volunteer and do this.

If you go in front of these folks and they make a recommendation, more often than not the judge is going to take that recommendation. Even if you’re unhappy, I’ve had friends try to get in front of the judge, and the judge says, “Why are you here? I’m going to agree with what the early settlement panel said. Is there anything else? Can we move on?”

The legal system doesn’t not care about you, but it’s a system filled with people doing the best they can. By recent accounts, a colleague in Washington said post-pandemic the court system is down 40% in employees – they just never came back. They were already short-staffed, now they’re down another 40%. Do you think these people want to listen to you complain about how someone left the toilet seat up? They’re overwhelmed and just want to go home and have dinner.

Your conflict, while it may seem like the world to you, the process is designed to just get the stamp on the paper and bring in the next case. These judges are being judged on how many cases they move through the system – that’s how they get promoted, raises, shown as successful. Their goal is to move you through.

Your best bet is to stay out of the system because they want you out, and if you go, they’re probably going to order you to at least try mediation anyway.

Lisa: I say see me now or see me later, your choice.

Joe: That’s it. You can see me now while you have a chance – you haven’t spent money and screamed and yelled at each other for months or years – or you’re going to get kicked back here anyway. That’s the beauty of mediation – in high-conflict situations, people can feel comfortable knowing give it a shot. If it doesn’t work out, you can always go to the next step – escalate to lawyers, collaborative, litigation.

I’ve got clients here and there where they didn’t get all the way, but look at all the things you did agree on – some really thorny, sticky issues. Don’t throw that away. You got a parenting plan, child support – you’re only arguing over the 401k. You couldn’t figure it out here? No problem. Limit it to this one issue. Don’t rip the Band-Aid off and suddenly try to dress the wound again.

I’ll write up mediator notes saying in mediation the parties discussed this, here’s how they got here, here’s what they agreed to, here’s the process we used. My hope is they’re not blowing the whole thing up. Smart couples, high-conflict couples smart enough to put emotions aside and say, “Let’s just get through this so I can get away from you and you can get away from me” – use your anger as motivation and move forward.

Lisa: Can you tell people how to find you? I know you’re in California but practice in different states and do a lot on Zoom.

Joe: Here’s a fun fact – I think we were accidentally, if not the first, one of the first practitioners to mediate online. We started in 2011 when we had WebEx and telephones – we didn’t really have cameras and high bandwidth. It started with a gentleman whose wife was agoraphobic, afraid to leave the house. He asked if there was anything we could do to help.

My wife Cheryl, who’s my partner and our divorce coach, suggested we try screen sharing. We made slides in PowerPoint, Excel spreadsheets, worked on the telephone, shared my screen, and mediated. It was Call of Duty – I’ll totally admit that – but over the last 14 years, we’ve honed our process. We do 100% online and practice in Washington, California, Illinois, New York, New Jersey, and Pennsylvania.

The best thing to do is go to equitablemediation.com – be careful not to type “meditation,” though we could use a little meditation here. We’re big believers in knowledge – we think knowledge is power and educated clients are good clients.

If you get to the homepage, at the bottom you’ll see “Learning Center.” Go there for tons of blog posts, podcasts, a free video course, other courses. We just want you to get educated, but always work with a professional. I’ve been doing this 28 years – we go to school, live, eat, sleep, and breathe this stuff. Get educated to a point, but definitely rely on professionals to take you the rest of the way.

If you’re in one of our states, you can click “talk to us” to schedule a free call with our divorce coach, my wife Cheryl, to see if mediation works for you. I’m a real straight shooter – if it’s not going to work, I’m also going to let you know that. I don’t want to waste your time or money. I want to help, but if I truly believe I can’t, I’m going to refer you to someone.

Lisa: Being blunt is what we do too – we call it the harsh New York reality check, and you’re a fellow New Yorker transplanted. Thank you so much for coming on and talking about this. This is very helpful.

Joe: I hope everyone enjoyed it. I know it’s a tough time, but this too shall pass. You just have to remember: I am strong, I will get through this, and I’ll come out better on the other side. I know it’s devastating when you’re in the middle of it, but hang in there, stay strong, stay focused. Work with folks like you to get through the process and build a better life on the other side.

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Contact Information:

• Website: equitablemediation.com
• States served: Washington, California, Illinois, New York, New Jersey, Pennsylvania
• 100% virtual mediation services available
• Free consultation calls with divorce coach Cheryl
• Comprehensive learning center with courses and resources
• Specializes in high-conflict and complex financial cases