From the Trenches of High-Conflict Family Litigation.

• Author: Hagen, Erika
• Position: Feature Family Break-ups & the Law

Never have I ever: set out to engage in high-conflict family litigation. And when I say high-conflict, I mean cases where the parties can't put their own emotions aside to make good decisions for themselves and their children. Somehow, though, it finds me. Time and again I have tried to minimize the conflict and look to the parties' broad goals to try to find alignment. On many files this, along with an exchange of voluntary financial disclosure, leads to an amicable resolution. Unfortunately, however, for a few cases this does not work. I am discussing these cases here.

One might ask: why would anyone, ever, want to do this sort of work? The short answer is: if not me, then who? In other words, if I turn away tough work, will the parties end up with counsel who are less empathetic or realistic (or without counsel entirely)? Will they end up in a worse tangle two years from now because they (or their lawyers) have not addressed tensions? Or will they struggle to resolve the dispute using a civilized mechanism and instead resort to "self-help" remedies, such as absconding with children or scuffling with the opposing party? Possibly. Which is why I do my best to address the conflict myself, as efficiently as possible, and in the best venue that I can persuade the parties to attend. Despite taking on these files, I avoid trials like the plague and assume that even on the most challenging matters the parties will not require a trial.

Why do I avoid trials? They are bad for families. No Mom or Dad should ever have to sit through a day of being cross-examined on the stand about their parenting habits only to go home and make supper for their children, see to their homework and tuck them into bed as if nothing is going on. Realistically, no parent is super-human enough to do so. The tension, stress and exhaustion will of course trickle in to the rest of the parent's activities. The result--the children are disrupted (at best) or damaged (at worst). It is beyond counter-productive to engage in damaging proceedings which are not in the child's best interests while simultaneously arguing about the child's best interests. As the kids say: "I can't even!" Luckily, there is a better way.

Swiss Cheese

If not trials, how do we get people who cannot agree that the sky is blue to settle their file? My approach is what I call the "Swiss cheese" method. A high school science teacher explained it as a way to tackle mounds of homework that seemed overwhelming...