By Anthony Storm, CFLS; Robin Sax, JD LCSW; Judge Joshua Wayser
Family law cases should settle. Yup, we said it. Family law cases are meant to settle. That proposition may sound aspirational—especially in high-conflict custody disputes—but it remains both the goal and, in most cases, the most appropriate outcome.
What makes these custody cases uniquely difficult is not legal complexity. Rather, it is the emotional intensity, the perceived stakes, and the enduring impact on children and family systems. These are not disputes confined to a single issue or moment in time; they shape family dynamics long after the court file is closed.
Drawing from the perspectives of the bench, a practicing attorney, and a mental health professional, this article outlines practical strategies for resolving high-conflict custody matters more effectively as we presented to the Beverly Hills Bar Assocation.
Too often, family law matters begin reactively. Clients arrive overwhelmed by anger, and attorneys may inadvertently construct litigation strategies around those emotions. This approach is neither strategic nor child-centered.
Effective advocacy begins with a simple but critical question: What is your goal? If a client cannot articulate what a successful outcome looks like, meaningful resolution is unlikely. Like a GPS, the destination must be defined before mapping the route.
At the same time, intake must include rigorous reality testing. Counsel should clearly outline what litigation can—and cannot—deliver. Courts can issue findings and orders, but they cannot transform relationships or eliminate conflict. A litigant who loses a custody motion rarely experiences a change of perspective; more often, the dispute persists in a different form. Where the client’s true goal is long-term stability or a healthy co-parenting dynamic, mediation is often the more effective path.
Mediation is not a discovery tool. Attorneys who treat it as one are not trying to settle, and mediators can see through that immediately. Not only does that not help your client it does not help your next client who wants to see that same settlement judge, mediator, or retired judge.
Effective preparation means more than just putting together a procedural history. You need to be well versed not just knowing your client’s strengths and but in their weaknesses. Lawyers who have an understanding of the nuts and bolts of a child’s actual daily life — school hours, logistics, special needs — and identifying zones of potential agreement before anyone sits down will go a long way into getting a case to settle.
I look at the orders already in the case, review what has been litigated, and map the positions side by side. Parties who appear diametrically opposed on paper are often far closer than they think.
Think of it as a Venn diagram: your client’s claims, the other side’s claims, and the overlap in the middle. That overlap is where agreement lives. The mediator’s job is to help the parties find the common ground.
Briefs should move the case forward, not document grievances. Settlement proposals that open with a “parade of horribles” before getting to the offer undercut the process. It makes it more difficult to settle when you start offending the other side. Put your client’s best foot forward.
The individual pre-mediation conference remains underutilized tools, yet it is one of the most effective tools available for effective mediation.
Meeting separately with each party before a joint session allows the mediator to build rapport, understand underlying dynamics, and gather insights not captured in written briefs. It also provides each party with an opportunity to feel heard, which can significantly reduce defensiveness during negotiations.
One particularly revealing exercise is asking each parent to identify their own strengths, their co-parent’s strengths, and their own weaknesses. The responses often illuminate the degree of insight—and rigidity—each party brings to the process. It is also helpful to ask what the other side would say about the other parent.
A defining feature of high-conflict custody disputes is the gradual shift in focus from the child to the parents. Litigation becomes framed in terms of winning and losing, and the child’s needs recede into the background. High-conflict cases share a common distortion: the parents become the subject, and the child becomes almost invisible. Every decision gets filtered through who is winning and who is losing. That framing damages both the process and the child.
Courts and practitioners must actively counteract this dynamic. One practical technique is to rehumanize the child in the process—for example, by asking parents to reflect on images of their child at their happiest. Ask them to recount what a day in the life of a child looks like. This reframing can ground decision-making in the child’s lived experience rather than the parents’ grievances. The research is clear: children raised in high-conflict environments replicate those patterns in their own relationships.
Equally important is drafting agreements that anticipate future points of friction—school transitions, medical decisions, extracurricular activities—and include mechanisms for resolving them. Durable agreements are proactive, not reactive. These future sources of conflict are not surprises; children age; schools by definition change. The mediation agreement should anticipate the future and help the parties solve it proactively.
The Parenting Plan Coordinator (PPC) is one of the most underutilized tools in California family law, perhaps because it cannot be Court ordered. When stipulated by the parties, a PPC can exercise quasi-judicial authority within a defined scope for up to three years.
The PPC does not need to be reserved for only the extreme or high conflict cases. Even in moderate-conflict situations, having someone empowered to resolve day-to-day decisions — soccer season, holiday schedules, school choice — prevents smaller disputes from escalating. Timely decision-making reduces uncertainty, which is itself a major driver of conflict. A child should not have to wait months for a court hearing to determine participation in routine activities. A PPC may be able to provides immediate, practical resolution and helps keep families out of court.
A mediated agreement is only as good as its drafting. Vague language invites future litigation. Ambiguous time-sharing provisions — “reasonable parenting time at mutually agreed upon locations” without specify — are a recipe for another court filing. What happens when there is a disagreement?
When agreement is reached on a point, document it immediately. A short and clear deal memo signed in the room prevents backsliding and keeps that agreement from becoming a bargaining chip later. Take the win, put it in writing, and move on. Agreements should also include built-in dispute resolution mechanisms — mandatory mediation, a PPC, or co-parenting therapy — rather than aspirational language requiring parties to “meet and confer.” That language returns clients to court eighteen months later.
Not all cases are suitable for mediation. Where there is credible evidence of abuse or immediate risk to a child, judicial intervention is necessary and urgent.
More nuanced are cases involving exaggerated or strategic allegations. These situations can lead to prolonged litigation and significant expense. In such instances, early mediation—combined with appropriate safeguards—may ultimately better serve the child’s interests than waiting for trial.
These determinations require careful, fact-specific analysis and candid discussions with clients about the realities of litigation timelines and outcomes.
The harder question involves allegations that are overstated or weaponized. That is a real phenomenon in family law, and it creates real complexity. The consequence, when used strategically, is years of litigation and significant cost. In those cases, early mediation with appropriate therapeutic safeguards is more protective of the child than waiting for a trial date. These are judgment calls that require honest assessment of the facts and a direct conversation with the client about the realistic litigation timeline.
Resolving high-conflict custody disputes is not about forcing compromise. It is about guiding clients toward clarity—understanding their goals, recognizing their children’s needs, and evaluating the consequences of continued litigation.
The most successful outcomes are those that minimize the need for future intervention. Families who achieve durable agreements are not those who litigate most aggressively, but those supported by professionals who maintain a consistent focus on building a functional future rather than revisiting past grievances.
In high-conflict cases, that shift in focus is not just strategic—it is essential. Litigation doesn’t negate people’s lived experiences. Judicial findings don’t necessarily lead to peace and often can just lead to more fighting. Helping people see the positives, getting them the tools to address the negatives, and focusing on the child and not the conflict get the best results.
Anthony Storm is a Certified Family Law Specialist and a neutral at Signature Resolution. His experience spans complex dissolution, custody, and high-asset property matters, with a near-perfect settlement record across both litigation and neutral practice.
Robin Sax is an attorney and licensed clinical therapist whose practice spans both the criminal justice system and high-conflict co-parenting matters through her platform, Dear Co-Parent.
The Honorable Joshua D. Wayser is a judge of the Los Angeles County Superior Court, appointed in 2015, and a graduate of Columbia University and Columbia Law School.
Disclaimer: Writers’ positions do not necessarily reflect those of the Beverly Hills Bar Association. The information contained on this page is not legal advice and may not be relevant in various territories and/or jurisdictions. As the laws change often, the information on this page may not be relevant at some point in time. No attorney-client relationship is formed by use of this post. The information on this page is for general purposes only.
