Family Law: Managing High-Conflict Separations effectively with proven legal strategies to reduce disputes, protect clients, and ensure fair outcomes.
Family lawyers love law. The craft of the legal system, client interaction, trial strategy, negotiations, and advocating for clients’ legal rights are all aspects that combine to make an incredible and unique professional experience for the legal practitioner. One of the most challenging aspects, however, both legally and emotionally, and we cannot forget ethically, is managing high-conflict separations.
Managing high-conflict separations with the techniques we have at our disposal to regulate the emotions involved and to streamline efficient resolution is an important professional skill that is best understood within the family lawyer’s context. In this article, we will discuss the legal practitioner’s role and techniques in these situations and how to use the profession’s tools to better meet their professional and ethical obligations to such clients.
Identifying High-Conflict Separations
In general, high-conflict separations are more common than they used to be but no one really knows for sure. These situations involve high psychological distress and many behavioural characteristics, most notably ongoing hostility, lack of communication, and other features such as: excessive litigation and re-litigation, allegations of abuse or coercive control, gatekeeping or interference with parenting time, inability to reach even minor agreements, ongoing verbal hostility or harassment between parties.
High-conflict separation can be highly volatile and, if early identification is not achieved, then a common factor is that the relationship between lawyers and clients can be unhealthy, burnout, and stress is a prominent possibility. In some cases, this will also go hand in hand with a fraught relationship with the other party. Lawyers can have a reasonably consistent method of mitigating this.
Avoid fueling client emotional states. There will be time for this later. High-conflict clients are often reactive, suspicious, and easily agitated or triggered. The lawyer’s approach can either help soothe the situation or exacerbate the fire.
In high-conflict cases, legal practitioners can focus on their use of language to ensure their communications will not be misinterpreted as adding fuel to the fire. It is essential to identify any red flags early on with new clients or contact with the other party’s legal practitioner.
Advocate, yet de-escalate. Lawyers with experience in high-conflict cases should identify the signs early and adjust their approach and client advice accordingly. Lawyers must remain the calm in the eye of the storm—a skillset emphasised in CPD for Lawyers training—and achieve this by being well-prepared.
Manage their client. We have limited control of the opposing party, but we can help our client modulate their emotional state. Controlling emotions is often a two-step process. First, the lawyer must be the calm in the eye of the storm. This will position them to avoid emotionally driven decision-making and advocacy.
This type of situation makes strategic decisions about continuing contact with their client. There may be advantages in cutting off all contact and using technology to transfer documents or using legal practitioners and couriers or requiring clients to provide signed and witnessed statements where necessary. Other practitioners have found additional value in stipulating with other counsel regarding procedural and tactical communications, such as stipulations with opposing counsel on communications and language that may prove inflammatory or antagonistic to the legal process and other core outcomes.
High-conflict cases can mean managing clients who will make poor decisions if given an opportunity. In all circumstances, the client relationship will remain essential and will have the same overall objective. The challenge is that the tactics and time spent on this process may vary substantially in high-conflict scenarios, and these need to be measured with care and strategic consideration.
Communication and Court Orders
Effective communication is one of the essential techniques for the legal practitioner to better identify and implement to avoid being too tactical and antagonistic to the family law profession’s aims, process, and purpose. Encouraging less communication between the parties, more written contact for essential communication, and fewer spoken conversations will reduce verbal abuse and allow time for rational and calm responses.
High-conflict clients who are quite litigious will require some court orders to help manage some situations. This may also include work practice directions or standard orders with content and procedure. Procedural orders to stipulate an effective communication plan and to maintain with enforcement tools in place for continued abuse are also quite common.
Family law in general is best used by the legal practitioner for high-conflict situations when early identification, de-escalation, and a commitment to working toward more cooperative and efficient resolution are the overall goal. We may need to build in objectives like third-party case managers (such as parenting coordinators, financial mediators, etc.). Still, the principles remain the same and can be incredibly valuable if early identification and intervention are used.
How Does Early Intervention Work for the Legal Practitioner?
It is quite an effective model and one that works if the legal practitioner is committed and prepared to do the work required to make it happen. In most cases, this early identification and intervention should be completed early on and can sometimes be completed in one meeting. This is not realistic in some circumstances, but this is where the legal practitioner has their skills most present. Identifying and agreeing on future disputes that are likely or could occur.
Future risk assessment. The main intervention point and most used is future risk assessment. A meeting that may be time-limited and a set or specific investment can give legal practitioners control over the future proceedings, disputes, and litigation.
Future agreements and undertakings. A future agreement and undertaking are probably the most important parts and are most used in many common law jurisdictions, such as in Australia and the United Kingdom. Undertakings to the Court and agreement or consent orders that are still legally enforceable but more flexible and private in nature.
Managing high-conflict separations requires a nuanced blend of legal knowledge, emotional intelligence, and strategic foresight. By applying the above high-conflict tips and techniques from the perspective of the legal practitioner, we can minimise harm, empower clients, and better meet our professional obligations to such clients with integrity.
The practice of family law requires an attorney’s flexibility and fluidity. It is a continuous challenge for the legal practitioner and one where increased skill will bring great professional reward. Staying current through family law conference attendance and peer-to-peer or multidisciplinary collaboration will ensure access to the latest information, tools, and techniques to work with high-conflict families with unique insight and a focus on shared client goals.
FAQs
1. What is considered a high-conflict separation?
A high-conflict separation means lots of fights, bad talking, and going to court a lot. It can include things like bothering each other, fights over who gets the kids, or going to court again and again. Lawyers need to spot these cases fast to handle them well.
2. How do lawyers handle high-conflict divorces?
Lawyers talk calmly, step in early, and set clear rules. They try not to make things worse by getting emotional. They plan carefully to avoid more fights.
3. Why is early intervention important in family law?
Getting involved early can make things less stressful and cheaper in the long run. It helps make plans and talk about how to communicate right from the start. This way, there are fewer fights later on.
4. What communication methods work best in high-conflict cases?
Writing things down is better than talking. It helps avoid getting angry and gives time to think before answering. Sometimes, the court can make rules to help with this.
5. Can court orders help manage high-conflict cases?
Yes, court orders can make rules for how to talk and act. They give clear limits to cut down on fights. This keeps everyone safe, including kids.
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