The Gray Divorce Podcast: Episode 14 Mediating High Conflict Divorce with Liz Merrill

Announcement: Welcome to The Gray Divorce Podcast, hosted by divorce financial analyst and retirement planning counselor Andrew Hatherley. Join Andrew and guest experts as they help late-life divorcees build the financial and mental foundation for a meaningful future. There is life after divorce. Now on to the show.

Andrew Hatherley: Hello everybody. Welcome to episode 14 of The Gray Divorce Podcast. My guest today is Liz Merrill. As a mediator, educator, and divorce coach, Liz specializes in helping parties navigate high-conflict divorces involving narcissistic relationships and difficult personalities. Through her company Open Space Mediation.

Liz provides her clients with the tools they need to negotiate fair terms without the drama of endless court battles. Liz is also the author of Managing high-conflict Dissolutions in Mediation and Court. Her approach is holistic. Drawing on her understanding of how the nervous system impacts psychological and physiological relations to trauma, conflict, and anxiety.

She collaborates closely with financial advisors, attorneys, and mediators to achieve the best possible outcomes for her clients while saving them a lot of money, and ensuring fair parenting plans. And staying out of court. Liz, welcome to the Gray Divorce Podcast. 

Liz Merrill: Thank you for having me. I'm really happy to be here.

Andrew Hatherley: Very happy to be here and it's going to be interesting chatting with you. I do some mediation work and some financial neutral work, and I've got to say I've got a lot of respect for people such as yourself who take on high-conflict divorces involving difficult personalities. It's, if such a case comes before me, I'm tempted to refer it to another mediator.

Do you think it takes a certain type of personality to be a mediator with high-conflict people? What brings you to specialize in this particular area? 

Liz Merrill: Yeah, that's such a good question. And it, and I think it does take a special kind of personality and Sort of emotional Emotional place if you will.

I started doing high-conflict in part because my own divorce was very high-conflict. And when I went through it, what I discovered was that even though I was supported by divorce professionals across the board, none of them really seem to understand the nuances the reality of Dealing with a high-conflict personality.

And that was like my attorney, that was the judge. I just felt like we were speaking different languages in a way, and I had to continually try to reframe and reword. My problems, my issues, and my experiences in order to get people to really understand what was going on. When I became a mediator, I had a lot of people calling me who were all across the board, but the people whose stories intrigued me the most, of course, were the ones that I resonated with which and there are so many high-conflict cases, of course. But not all high-conflict cases are the same. Sometimes both parties are high-conflict. And I think when the court thinks of a high-conflict case, they think of both parties just being intractable or whatever.

But there are high-conflict cases where there's one. Who's high-conflict? And when I say high-conflict, I'm really using this sort of umbrella term to describe patterns of behavior to describe someone who may have traits of a personality disorder or mental health problems, or substance issues.

People who tend to see things in black and white view their emotions as facts. People who don't have a problem bending rules or bending the law. People who oftentimes project their own problems onto other people and people who. View everything through the lens of I'm the victim here, even if they are actually the ones who are being abusive financially or emotionally or otherwise.

So I just started getting a lot of these cases and started really looking into what makes somebody high-conflict. How do you speak with them? How do you communicate with them? What's an effective way to approach a negotiation? How do you help your clients regulate themselves so that they can have a better outcome?

And to go back to your original question, do you have to have a certain personality to be able to deal with this? I think you really do. There's something called mirror neurons. I don't know if you've heard of them, but if you show up and you're really high energy and you're already emotionally escalated, They are people that you're working with are going to pick that up, right?

But if you are able to model regulated calm behavior, that helps. That's one thing that you can do to help parties settle so that they can actually get into the logical part of their brain rather than just operating out of their amygdala in their fight or flight mode.

Andrew Hatherley: The dreaded amygdala. Yeah. You've mentioned a lot there, Liz, and I want to unpack a few things, but first, it's all interesting that I had a kind of high-conflict divorce as well. And I guess my amygdala sends me on a flight function because I don't want to revisit that.

With other people. It almost triggers a PTSD type of response. You seem to have taken a very intellectual approach and a curiosity approach which indicates, as we said, a different type of personality that is energized by helping this type of personality.

Yeah. I wonder, because you mentioned different types of high-conflict, does the high-conflict individual necessarily need to be aggressive or can they be difficult and resistant, or are they typically? Among the pattern that you described, and of course, there's a famous word that's used to describe that type of personality, which we'll get to.

But does a high-conflict individual necessarily need to be that type of personality or can they just be resistant? Or non-responsive? 

Liz Merrill: Yeah sure. And those are, I guess more, you might call them passive-aggressive behaviors, right? For me, anytime that I am dealing with somebody who is unable to get out of their position, who's unable to show up, and in good faith, making an effort to move the needle up forward. And sometimes people show up and they're really hot and they're very aggressive and they just can't, they just can't get over whatever it is.

They can't get over it. And you just seem to get stuck there sometimes people and, not too deep down the narcissism hole. I try not to get too bogged down with labels or diagnoses because they don't really help you when you are trying to mediate. To be honest, of course high-conflict behavior can show up in any number of ways. 

It's not always aggressive. It could be someone who just flat out refuses to provide discovery, answer emails, show up even, or show up and just com completely stonewall everybody. That's pretty high-conflict behavior too. 

Andrew Hatherley: We mentioned the word the N-word of divorce. Narcissism. And I tell you probably at least one-third of the phone calls that I get from prospective clients say my spouse is a narcissist. And it's getting to the point where I certainly think, maybe I'm curious what you think. The words are being overused and perhaps even trivializing the effect that real pathological narcissists have. Maybe pathological is not the word, but real narcissists have on the parties that relate to them or are involved with them. 

Liz Merrill: Yeah it's true. It is a very overused word. And a lot of times people seem to equate narcissists with a jerk. And I think anyone who works in the divorce field has the same experience you do where a large percentage of the people you come in contact with are divorcing a narcissist. And I'm saying this in air quotes, so yes, it is overused. There are also studies that show that it is on the rise in this country.

Narcissism has been on the rise since the eighties. It's also true that it's almost impossible for someone who really is a true narcissist to get diagnosed. Because the very nature of narcissism prevents those individuals from really being able to acknowledge that they are the problem.

And they are not likely to march themselves into a psychologist's office and say, “Hey, I think I'm a narcissist. What do you think? Let's have a diagnosis here”. They won't do that. But there are plenty of people who have the traits of a narcissist. It's on a spectrum.

Andrew Hatherley: Yeah. You can have a little bit of narcissism in you without being full. 

Liz Merrill: And again, narcissism isn't just someone who's a jerk or who's conceited or who is arrogant. It takes several traits of the nine in order to be diagnosed. I think it's five out of the nine traits to be diagnosed as a narcissist or someone with narcissistic personality disorder.

But the trick is it doesn't really matter by the time you are getting ready to divorce, it doesn't matter if you have some traits or all of the traits. If you're a combination of a narcissist and another person with type B personality disorder like borderline, you can have traits of both of them, right?

And what I think matters more are patterns of behavior, right? Because you see patterns of behavior, patterns of high-conflict behavior over and over again, probably in many of the cases that you've seen. Certainly, if they're high-conflict, and if you can recognize those patterns you can predict them during the divorce process, and if you can predict them, then you can strategize around that. And you're not so surprised when something crazy happens. Because it's almost like high-conflict people have a book that they read on tactics for divorce, right? I am not aware that one exists, but sometimes it seems like it cuz you see patterns of behavior over and over again.

And that's what really interests me because that's where you can get some traction and where you can make changes so that you’re better able to manage and help parties negotiate and get through the process as unscathed as possible. 

Andrew Hatherley: So we're in the process before. Let's just take a step back because I want to talk about the process that you use, the mediation process.

A lot of our listeners may have heard of mediation, but not know exactly what it means. How long is the process? Some mediations may be half a day. Some may be a full day. Some may go on for a longer period of time. Some may involve attorneys, some not. Some may involve attorneys only at the end to draw paperwork.

How does it work when you are dealing with the mediation? And then we can go into some of the details of dealing with the high-conflict person in the mediation. But to start, how is it that you engage and how do they come to you, and then how does the process work? 

Liz Merrill: It's one of the things that I love about mediation is that it's extremely flexible.

And so, you know how some people are black and white? I am very gray and I like to be able to meet parties where they are. I don't like people to be put in boxes. So to answer your question, sometimes people call because they said the court said that we had to mediate. So we want to schedule a court order mediation, and that can be as long as half a day or as short as less than an hour. I had one couple come because they were court-ordered, but they had already agreed on everything. Basically, they were just showing up to tick a box but sometimes couples come to me and they say, “We want to get a divorce. We don't want to do it ourselves, but we don't want to litigate our divorce.”

And so I meet them in the middle and in some cases I just charge a flat fee and I walk the path for the whole process with them. I help them understand how you petition, how you file, how you put your documents together for your sworn financial statements, how to look at a parenting plan, and we have multiple sessions where we talk through everything. And that can be really helpful because once you started the divorce process and once you start looking at numbers and you start really contemplating “Oh my gosh, I'm not going to have my kids with me full-time anymore. It can get scary parties can get angry and that's really when working with a neutral third party can make or break your divorce process.

Because if you are able to have assisted conversations and negotiations and be in a place emotionally and mentally where you can. Talk through different scenarios, you're able to be more flexible with the outcome, right? You don't have to be shoved into a box. So, to answer your question, some of my mediations are less than an hour.
Some of them go on for several months over a period of time. And it really depends on what the parties are looking for. 

Andrew Hatherley: Are attorneys typically involved either, formally or as consulting attorneys. And you're in Colorado, right? Collins, Colorado. So might the process be a little bit different in Colorado than some other states with respect to, how you would work with attorneys?

Liz Merrill: Yeah. Yeah. I would say half and half. And like I said, a lot of people come to me that aren't high-conflict, in fact the opposite. And they want to be collaborative in their approach. And so if we get part of the way through a divorce and it seems like they need to talk to a CDFA or a certified lending professional or an attorney I will make suggestions for them because I want parties to be as well educated as they can be.

Andrew Hatherley: That's very important. Yeah, and I agree with you a hundred percent there on the education in the early stages, because quite often you'll have friends or family members telling you something about divorce. Counterproductive to say the least. So let's say you're in a situation where you're in the early stages of a high-conflict.
Divorce or maybe having initial discussions and then you know that one of the parties are going to be, or maybe even both parties are going to be very difficult to work with. How do you prepare for that at the outset so that the mediation can ultimately prove more fruitful? 

Liz Merrill: Yeah. Again, it depends.

It depends on the parties. Sometimes we just have to caucus, by which I mean have parties in separate rooms, whether they're virtual or physical. So that they're not triggering each other from the outset. And a lot of times, high-conflict mediations require that in order for the parties to focus on the issue at hand.

Sometimes we're in the same room. I try to keep the structure of the mediation. Very tight so that there is less opportunity to go off the rails. So at the outset, I like to have a very clear agenda. And I like to talk to people, at the outset, about what the process is going to look like and let them know that we can never mediate the past, that we're going to be wasting our time if we try to, revisit last year's event at the restaurant or whatever it is, and keep on the issue at hand.
Allowing one party to make a proposal, for example, and sometimes you'd think that would be very simple, they'd be able to say, how about this? And we'll do this and this. And in an ideal world, the other party would be able to say, what I like about that is this.

What about if we do this, how about this number? And go back and forth and ask questions and say yes or no, or I'll think about it. Sometimes it's hard to even get past that point because just the very mention of a proposal sends somebody off into space because they're insulted by it or it reminds them of something else or whatever.

Andrew Hatherley: So as a mediator, when you hear something that maybe even you can acknowledge is a pretty outlandish proposal, how do you best respond to that? 

Liz Merrill: Always by asking open-ended questions, right? Like how is this going to play out? How do you envision this actually happening?

And then getting even more granular, if someone's proposing full custody and it doesn't seem likely. If you can get them to really do the thought process of can you actually do this? What happens when you're at work? What happens if you know this happens? How are they going to get to and from school?

How are you going to manage this and work and do all of these other things? And a lot of times people will, as they are talking through things, realize actually maybe no, that's not going to work. Sometimes you just have to, play the reality check. Unless there is some really compelling reason that that you can make to the court for full custody, they're probably not going to grant it to you, right?

Or it's going to a very high bar, right? And this is where the gray area can become uncomfortable sometimes, right? Because obviously we're not in the business of advising people giving legal advice or telling them what to do, but at the same time, they also, whether they're high-conflict or not, need to know what the standards are.

Andrew Hatherley: That's so true. I think personally, whenever I do a mediation, I always like to do a little presentation at the beginning about what we've agreed about coming to the mediation with an attitude of respectfulness and open-mindedness and flexibility, and as you mentioned, a future orientation because I think high-conflict people tend to get really, involved in the past and with a sense of grievances that they're feeling.

And so the future kind of keeping it on part of our job as mediators is to keep it on track and keep it future oriented. And you mentioned, putting proposals, asking for proposals to be put forward. But what you also said is that ultimately I think the high-conflict person, correct me if you've experienced this, they often they're looking for someone to blame. And if you can remove yourself as this judge-like figure, because we're not, we are facilitators. We're trying to help a couple come to a resolution of their situation by themselves and not get to that awful position where they've spent tens of thousands of dollars and they have a judge who's seen them for an hour, make important decisions for the rest of their life.
So yeah, you're right. We're not advising. And for some, I'm a financial advisor, and so it's it's difficult for me. Sometimes I have to take off my financial advisor hat because we're always telling people what we think they should be doing and making recommendations. When I'm in mediation, I'm a completely different person.

So don't you agree with that? We're much more facilitators and a high-conflict person will be easier to deal with if they can't point at us and say, I don't like what you're saying. 

Liz Merrill: Yeah, exactly. And that doesn't prevent people from getting mad at you sometimes.

And when you're pressing them a little bit or when you are trying to help them understand that their position is probably not going to fly if they took it to court you can still be a target, if you will. But generally speaking, yes, as a facilitator you're not telling them what to do, you're not advising them, you are talking to them as if I, hopefully and ideally, you're always talking to your clients as if they know themselves the best and they know what's best for their children and they're operating from a standpoint that they want what's best for their children, right?

And appealing to parties wise mind, right? Appealing to their better self can often really help people show up as their better self, right? Most of the time people who come into mediation don't really want to show their butt, right? They don't want to appear as the crazy one or the problem one.

And the downside to that is that sometimes people show up and say, oh yeah, sure, that sounds reasonable. That seems, agreeable and then go off and get PO’ed about it and and change their minds. One of the most important things I can tell people who are going through a divorce, regardless of what kind of divorce it is, is to get the word fair out of your head.
Because it's never going to feel fair. It's even if you negotiate completely on your own, you're still going to walk away feeling like you got the short end of the deal. And certainly if you go to court, a lot of times people think that they're going to have this amazing cinematic day in court and they're going to say their sad story and everyone in the room is going to be like, oh my gosh, that person should get everything they're asking for.

But it never happens that way. 

Andrew Hatherley: The judge doesn't care about your story. 

Liz Merrill: Yeah. Exactly. You're appealing to a person who doesn't know your story, doesn't want to hear all the ins and outs, isn't going to look at every piece of evidence and discovery that you lay before them.

Isn't going to have time to, or the bandwidth or the interest. And you're putting a lot of power into someone else's hands over your money, over your family, over your children. 

Andrew Hatherley: Yeah. That's so important, Liz. In my kind of opening statement at a mediation I'll focus on how this is an empowering process for the couple, because they're in charge.

They're controlling their fate and they don't want to be in that position six months down the road where they've gone through more emotional stress, more financial stress, paying attorneys and legal fees, only to have a judge who doesn't know them issue a decision.

That they could have come to something a much better resolution by themselves. So mediation can be certainly an empowering process and of course fair. My little catchphrase is, fair is an F word in divorce. You're sure you've heard that before.

It's just when you're splitting a household, it's the largest financial transaction quite often in people's lives. Ultimately, You're seeing a net worth split in two, so nobody comes out of divorce better-off financially. Two households are being formed from one, and, most recent statistics on gray divorce for people over the age of 50 is that a woman's standard of living declines. Close to 45%, and I think for men it's about 21%. So you're looking for a workable solution so you can get on with your lives, don't you agree? 

Liz Merrill: Yes. Yes. Exactly. Wrapping your head around that is really hard because people often come into a divorce thinking or have remembering like the style to which you've become accustomed to living.

I don't even know where that came from, but it's irrelevant. Like you said, when you're splitting one house into two, you are going to have less money. So often I hear parties, like both parties in a divorce say, I can't afford this. I don't know how I'm going to afford this.

How can I can't buy a new house? I can't pay for two houses. And that's really where the rubber hits the road. Where you really do have to look at your financial statements, look at what you've got, and be regulated as you try to craft a settlement that you can actually live with, that you actually can walk away with and make a new life with.
And unfortunately that just requires chipping away at options and really having a good look at what you've got in the cold light of day with people who like you, who can help them understand like maybe, your goal after divorce is to retire in five years and years to retire is seven years, or you haven't ever worked before, so you're going to need more upfront maybe to get you up to speed, right?

And then maybe less after that so that you start really being able to get creative and flexible with things like spousal support or what you're going to do with the family home or how is he going to be able to refinance the house if he wants to stay in it? Is that even feasible?

Can you take your emotion out of that enough?

Andrew Hatherley: Once you get your decree and that's the future orientation that, we're trying to get the parties on is to look at that future life and building a financial foundation for a meaningful, purposeful life going forward.
And, it's obviously in some cases, some divorces are easier than others and more emotions than others in different cases. But I always like to remind people that the divorce workshops that I conduct here in Las Vegas, that no, there is life after divorce. And post-traumatic growth is a real thing.

People are resilient and they can go on to have meaningful, purposeful, happy lives in the future, no matter what age they are. When they're getting divorced and of course with people living much longer these days. And the divorce rate really only increasing for the older section of the population.

I think it's important that they they have that future orientation. And of course the financials are important in building the financial foundation for the future. One of the things I wanted to touch on is in some cases you'll see power imbalances. How do you deal with something like that where there's obviously a dominant personality?

Liz Merrill: Yeah. That is a real thing. And sometimes there's straight up domestic violence and a need for protection orders. 

Andrew Hatherley: You certainly need legal involvement there. 

Liz Merrill: Yeah. Or, there's financial abuse. And I'm sure that you see that.

So when I see something like that, often what I end up doing is working as a coach instead of a mediator, because mediation does not seem like a reasonable path for this couple to be on, right? So often I'll take off my mediator hat and put on my coach hat and support an individual in making sure that they have the resources that they need, whether it's legal or they need to get law enforcement involved.

Whether or not they need to get their CDFA, their own financial advisor who is able to look at all of the finances with an eagle eye and pick out anything that looks weird, help them craft a storyline financially that's compelling that they can take to the attorney or whatever, help them identify what they need. 

Obviously an attorney if somebody needs an attorney. And often when there is this big power imbalance, you do have to bring in attorneyst. Although I like it when you don't have to use attorneys, there are sometimes when you absolutely 100% do need an attorney to support you.

Because of course, if there is this big power imbalance or abuse, a lot of times the person on the receiving end of that also has so much PTSD and it's hard for them to speak for themselves. It's hard for them to stand up exactly to the other person. They're used to being in fight or flight mode or freeze or fawn.

So they need a lot of support across the board, emotionally, financially, legally. 

Andrew Hatherley: Liz, unfortunately, we're coming close to the end of our time today, but I did want to ask you, have you had an experience where you found that being creative in a mediation has helped you find a solution that satisfied both parties in a high-conflict divorce?

Liz Merrill: Yes. I'm thinking in particular of this one case, which was so surprising to me because both parties came to me very upset, very dysregulated, very angry, and we actually met in a conference room at a public library. Rather than a conference room, because it was a neutral place where no one was going to start screaming.

And I had them separated in two different little study rooms and we started in one room and it was just, it wasn't going to happen. So I put the husband in a different room and I went back and forth. I did the caucusing thing and just asked them, What do you want? What do you want?

What's an ideal outcome? And then I went to the wife and I said, what do you want? And what they wanted was basically the same thing, but they were so dysregulated they couldn't even see that. So I was able to go back and you obviously, if someone is ranting to you, you don't take it all, you filter out all of the triggering stuff and you just get to the simple this is what I'm proposing, and you go over to the other party and this is what they're proposing and they're like, oh, huh, that's very close to what I was thinking. So it ended up being like a beautiful mediation because once they were able to get out of feeling triggered, they were able to see that they were in a lot more alignment than they thought they were.

Andrew Hatherley: It's so satisfying as a mediator to see that happen, isn't it? 

Liz Merrill: Oh my gosh, yes. It makes you feel like an awesome mediator. 

Andrew Hatherley: No you do, and you feel like, “Wow”. You've come to a situation where you didn't think it was going to end well and you've managed to bring two people you meant to facilitate, to help.

It's not even that you're imposing anything. You're helping people to resolve their differences in the best way possible. And so it's yeah. 

Liz Merrill: And a lot of the times, a lot of times it's really just a matter of clearing away, brushing off the emotion, and getting to the substance of what they're dealing with. And if nobody had emotion, divorces would be easy peasy. 

Andrew Hatherley: Exactly. But Liz, thank you so much for coming on the Gray Divorce Podcast today. I've enjoyed chatting with you very much. And if any of our listeners would like to reach out to you, how can they find you?

Liz Merrill: They can google Open Space Mediation and find my website there. I'm on all the normal social media platforms. You can look for me there on Facebook or Instagram or even TikTok and certainly LinkedIn and find me there. There's a contact me form on my website, it's easy to find me and I would welcome anyone who does want to talk about any of these things to schedule a free 30-minute consultation with me and we can just talk about your issues and see how I can help or see who I can refer you to.

Andrew Hatherley: Terrific. Thanks very much, Liz. 

Liz Merrill: Thank you so much for having me. I really enjoyed it.

Announcement: Thanks so much for tuning into this episode of The Gray Divorce Podcast. To learn more or get in contact with your host, you can visit Andrew's website TranscendRetirement.net. Also, please feel free to rate, subscribe, and leave a review wherever you listen to your podcasts. That helps others find the show and we greatly appreciate it.

Thanks again for listening, and we'll catch you in the next episode.

Andrew Hatherley: Information provided is educational only and should not be construed as legal or tax advice. Each situation is unique and should be discussed with your tax or legal advisor prior to implementation. Andrew Hatherley is not an attorney and does not provide legal advice. Information provided is financial in nature. 

Advisory services offered through Hatherly Capital Management, LLC. Divorce Financial Analysis Services offered through Wiser Divorce Solutions and affiliated company.