Table of Contents
Summary
Every case requires a unique and personalized approach to minimizing conflict during a separation or divorce. Some matters have a conflict that derives from differing parenting styles, whereas other cases have issues such as suspected alienation that may be the driving force of the conflict. Each issue has a unique solution that should be explored, depending on the counsel’s recommendation and the parties’ consent. The first step to minimizing conflict is recognizing the specific conflict and catering a unique approach to address the individualized conflict. Conflict that derives from differing parenting styles often requires child-focused communication between the parties, whereas conflict stemming from financial issues may be better addressed by professional valuators or through mediation/Alternative Dispute Resolution. At Gelman & Associates, we have a thorough screening to examine each individual case for high conflict and recommend certain approaches based on suitability.
Tip 1 – Identifying the Source of the Conflict
Various types of issues can give rise to conflict between parties during a separation or divorce. These can include alienation – where one parent feels that the child is being coached or alienated against the other parent. This may often be an underlying cause for various high-conflict matters and can spill over and impact other legal issues such as decision-making responsibility and parenting time. Identifying and addressing this type of conflict once it is evident is extremely important in cases dealing with alienation. Other types of conflict can include but are not limited to intimate family violence, coercive control, differing power dynamics between spouses, and physical, emotional and financial abuse. Sometimes, certain personality disorders can also impact conflict. For example, if one or both spouses have bipolar disorder, narcissism, addictive personality disorder, etc. Mental health is a relevant issue that should also be addressed when identifying the source of conflict.
Tip 2 – Using “Forward” Thinking Approaches to Resolve Potential Conflict
One of the best approaches to minimize conflict is to focus on the future to prevent future conflicts from arising. This approach may not be appropriate for all matters, but high-conflict files may benefit from a resolution-focused mindset. The key here is to put aside the past and focus on problem-solving the future. An example is if two parents are having issues deciding parenting time. A resolution could involve setting parenting time schedules, fixed pick-up and drop-off times, holiday schedules that alternate fairly, fixed exchange locations, etc. Having a set parenting time schedule with some flexibility allows both parents to plan their lives and the children’s activities around this schedule and is also helpful in minimizing any future conflict. If exchanges are an issue, parties may opt for a neutral setting, such as a school for pick-ups and drop-offs, where parties may not have to see one another. The idea here is to implement fair safeguards to minimize present conflict and potentially prevent future conflict between the parents.
In some cases, the passage of time helps both parties to focus on the future and “problem solve.” Some parties may not be ready to resolve outstanding issues as emotions often run high during a separation or divorce. While counsel waits for court dates to come up or reports from experts to be provided, sometimes time can change one’s perspective and have a party prepared to resolve a matter utilizing the “forward” thinking approach.
Tip 3 – Exploring Mediation and Alternative Dispute Resolution, if Appropriate
Some high-conflict matters may benefit from exploring mediation and alternative dispute resolution, as going to court can often be time-consuming and costly. Cases dealing with violence may not be appropriate for mediation as there is often a power imbalance between the parties. It is best to obtain legal representation to assess whether your file is suitable for mediation. Mediation can be a cost-effective way to explore a resolution if parties are close to a settlement. A mediator does not take the place of a lawyer or judge and cannot make a final decision on behalf of the parties. They can, however, offer the parties a compromised solution, and it is up to the parties if they wish to pursue the compromised solution. Either party can walk away from the solution proposed by the mediator as mediation is a voluntary process, i.e., no one can be forced to mediate an issue or accept a proposed settlement. There are also different types of mediation, such as closed and open mediation. Open mediation means that parties may discuss what happened during mediation in court if the matter has not been settled. A closed mediation is private, and discussions/documents that took place within the mediation cannot be shared in court. It is best to consult your lawyer to discuss which mediation option is best for you.
To reduce conflict, one may want to consider “shuttle” mediation. This is when both parties are in two separate rooms with their counsel, and the mediator/lawyer travels between them to assist them with a settlement. Shuttle mediation helps minimize conflict between both parties as the parties are not in the same room, and discussions can be focused on the issues raised by the respective mediator.
Other forms of alternative dispute resolution (‘ADR’) may also be appropriate. These can either be used in conjunction with mediation or as a follow-up in the event mediation is not successful. These forms of ADR include but are not limited to, arbitration, collaborative practice, negotiation between counsel, etc.
Tip 4 – If Children Are Involved and There Are Parenting Concerns, Have a Co-parenting Protocol Ordered or Agreed to in an Agreement With Neutral Terms That Are Fair to Both Parties
If children are involved, both parties will most likely need to communicate even after separation/divorce for parenting time or decision-making issues. To minimize conflict, it is recommended that both parties get into an agreement or order regarding co-parenting terms. These terms will most likely include but are not limited to:
- Communication over software such as ‘Our Family Wizard’: The ‘Our Family Wizard’ Application is often recommended by judges and lawyers as it keeps communication between both parties child-focused. The application uses various filters that try to filter inappropriate communication or prompt parties to change their tone of language within the message. It also offers other features, such as receipt tracking and other methods that are helpful for the parties;
- Terms in place for each parent to not directly or indirectly interfere with the other parent’s parenting time with the children;
- Communication protocols that each parent has with the children, not speaking ill of the other parent, etc.;
- Protocols for each parent to inform the other parent of upcoming medical appointments, etc., if appropriate for the case;
- Protocols for each parent to access third-party information and documents by themselves without involving the other party, as long as it is appropriate;
- Steps for each parent to take in the case of emergencies with children, notifying the other parent, providing the other parent with medical diagnosis of the child, etc.
Tip 5— Professional Involvement (Therapy for Children, Parties, Expert for Financial Issues, s.30 Assessment, Etc.)
Some matters may require professional involvement if conflict does not subside. These cases may require court-ordered therapy or professional assessments if parties do not consent. For files with financial issues, if appropriate, an accountant or financial expert to provide a report on the income or valuation of a business is often necessary. Although costly, the involvement of such professionals may offer the parties insight into their financial issues from an expert that can help minimize conflict between the parties.
A s.30 assessment is when the court or the parties appoint an assessor to evaluate decision-making issues and parenting time issues and report to the parents and the court. These assessments are only usually ordered if a file is complex, touching upon the ability of a parent to meet their child’s needs or keep them safe. These assessments are very intricate and intrusive, often spanning several months and requiring multiple meetings with both parents, children and other individuals. Depending on the case’s complexity, the assessor may review documents such as school notes, dental records, therapy notes (if applicable), etc. If the matter does not settle and proceeds to trial, the assessor may be called as a witness to the trial. It is highly recommended that one consults their lawyer to assess if professional involvement through therapy or an assessment is appropriate for one’s case, as they can be costly.
