High Conflict Divorce: Tips from the Trenches

Some spouses who are separating seek out the most aggressive lawyer for their divorce. This is because in the field of family law, where clients’ emotions run high, they often are insecure, scared and worried that their spouse will take advantage of them.  In fact, some spouses even threaten to do just that.  Which is why some spouses think they need an aggressive lawyer and then demand them to be aggressive. Despite this, the role of the divorce lawyer is to solve a legal problem, not make it bigger; and aggressive conduct tends to inflame the already incendiary situation. We lawyers must not be enjoined in the marital conflict and instead maintain civility, objectivity and usefulness throughout the period of legal representation.

Interpersonal conflict in divorce is not only between the spouses.  Lawyers are naturally competitive people. A new retainer for some lawyers is like the opening bell in a boxing match. They treat the case as a competition between the differing legal positions, opposing beliefs and contradictory family values of the two spouses. Some lawyers confront these conflicts head-on, delivering powerful blows to the other side, while other lawyers take a more conciliatory approach to dispute resolution, evading conflict and instead channeling compromise. The first approach (i.e. combat) is tense, stressful and destructive. The latter approach (i.e. compromise) is ethical, helpful and professional.  The first approach is very time-consuming and expensive.  The latter approach is fast and inexpensive. The first approach causes damage to families and children. The latter approach preserves family relationships and places the needs of children at the forefront.

Guess which approach is most popular?

Sadly, many spouses exit a marriage filled with upset, anger and revenge.  And that is why some choose the first approach.  Some of those spouses later change gears and move to the latter approach.  Some stay til the end. Others throw in the towel and represent themselves in their divorce, praying for closure.

Some divorce lawyers find themselves enjoined in the human conflict. Although these lawyers are in the minority, their inability to maintain objectivity, control their clients’ expectations and counsel against hostile behaviour leads to heightened acrimony, idle threats and very expensive letter-writing campaigns.

However, a movement is afoot within the legal profession to change this environment.  Everyone has a role to play in this development.  Clients need to own their decision as to which lawyer they hire - to either hire Laura Dern or Alan Alda (see Marriage Story). Judges need to be more vocal about the type of lawyering that is welcome in their court and that receive judicial approbation. Mediators can privately and diplomatically comment on what behaviour helps to reach a settlement and what stands in the way.  Lawyers can be the light to other lawyers on how good lawyers act, listen, speak, write, reflect, respond and agree (yes, agree); and even better lawyers can demonstrate how to respectfully disagree, while providing an explanation why and offering an alternative route to resolution.

Lawyers are now starting to admit that the first approach is not good for their health, for their family life, for their reputation and for their bottom line. The evidence is showing that those lawyers receive the most negative online reviews, the most number of complaints to the Law Society of Ontario and the most bad debt from unpaid accounts. Their staff are unhappy. Other lawyers avoid having cases with them. Judges know who they are. Plus, they are attracting less new business. They are simply less popular - both inside and outside the legal profession. Fortunately, the marketplace is correcting this trend.

Given this transformation in the resolution of family law disputes, I will offer a few tips to my fellow lawyers that I have successfully employed to navigate the troubled waters of hostile divorce litigation:

1. Know your case well. Know the other spouse’s case even better. Then identify where the spouses are apart and why.  Then do your legal research and ascertain how judges in your area have adjudicated the contested issue in similar recent reported cases. Then find the costs endorsement that followed it.  Then share this research with your client – whether good or bad and especially if there are conflicting outcomes.  Then be frank with your client about the likelihood of success, the unpredictability of outcome and the certainty of the cost of conflict.  Be the voice of reason.  Ask yourself how you can best be your client’s trusted advisor, objective advocate and balanced professional.  Do not be shy to tell the conflict-oriented client to consider retaining another lawyer.  I have.  It has remarkably changed the client’s attitude when they see that the lawyer they are willing to pay is declining to serve as their warrior.  Those that leave should not be your client.  In the end, you are demonstrating the very ethics that you promised to uphold on the day you were called to the Bar.  You will be respected by everyone.
2. Reframe the legal dispute. Approach conflicts as opportunities for reflecting, learning and understanding differing perspectives. Practice curiosity. Call the other lawyer and ask them to argue their case to you – off the record.  Repeat it back to the lawyer to make sure that she understands that you understand her case.  Then do not argue your case.  There will be another time for that.  Use this as an opportunity to build a bridge to the other lawyer - as opposed to declaring war and exchanging missives. Collaboration needs to be seeded, grown and nurtured.  In this case, and in your future cases, it will lead to a long, fruitful and fulfilling legal career.
3. Abandon the blame game. Form a mindset that, in divorce, no one spouse is to solely to blame and that this is just another family who is in trouble and that needs professional help. You are a professional who can provide support, guidance, case-management, advise and advocacy.  Demonstrate objectivity while also compassion.  Speak to the other lawyer to ascertain if she shares your approach.  If the other lawyer is not yet ready to compromise, keep the lines of communication open for a later discussion.
4. Learn how to embrace discomfort. Allow the other lawyer or client to complain.  Learn to be comfortable with this uneasiness. Defending, rebutting and arguing will hinder your ability to morph difficult conversations to productive exchanges. Practice sitting with your thoughts and feelings, without immediate judgment. Know when and how to agree to disagree. Give careful thought to whether negotiation, mediation, arbitration or litigation is the legal process that will conclude the contest. Ask the other lawyer what she thinks is the best route to take to conclude the dispute.
5. Treat the other lawyer as though you will have many more cases with her. That way, you will not burn a bridge but rather build a reputation for being a partner in the resolution of family problems.  Display empathy, patience and reasonableness to the other lawyer.  When you make a concession, do not demand reciprocity. Follow the golden rule: do not do to another what you would not want done to you.

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