The legal and judicial systems in Alberta have admirably evolved in encouraging parties to choose Alternative Dispute Resolution (ADR) forums such as Mediation, Arbitration, Collaborative Law and variations thereof. Ideally, any couple headed toward divorce will mutually opt for one of these paths of least resistance. They will attempt to minimize conflict, cultivate goodwill and agreeably make their way toward comprehensive resolution. For good reasons, the boardroom has been replacing the courtroom as the chosen forum to resolve Divorce & Family Law matters.
In some cases however, the character of one or both of the parties, or perhaps merely the nature of the issues in dispute, will pave a path to high conflict litigation. Whatever the reason all high conflict litigation matters share one feature: common ground between the parties is unavailable at almost every turn.
High Conflict Ex-Spouses
The personality type of one or both of the spouses can often dictate the tone, pace and progress of a dispute. There are some spouses for whom “winning” is everything, and for whom even a subtle expression of compromise is viewed as an admission of defeat. Military metaphors are indeed apt for these spouses. They are prone to “wars of attrition” and have no fear of “mutually-assured destruction”. They are indifferent to their own financial or emotional exposure, and they heavily invest in acquiring or maintaining what they see as a favourable balance of power.
High Conflict Divorce & Family Law Issues
People aside, certain Divorce & Family law issues lend themselves to high conflict more than others. This really is “art v. science”: those matters that are open to personal interpretation and those that are less so.
More objective and less disputable matters, for example where strong presumptions, applicable formulas or legislated guidelines are imposed, limit the possibility of debate. Also, the potential for high conflict is reduced for those financial impasses that can be largely resolved by outsourcing to an impartial expert for an opinion.
In contrast, those matters where the parties’ personal recollections, opinions or value judgments are central to the debate can often provoke high conflict. Also, where the governing law or legislation provides for wide discretion in analyzing an issue, the unpredictability of an outcome will allow the parties to take widely divergent positions.
High Conflict Divorce & Family Law Experts
High Conflict Divorce & Family Law matters can be emotionally and financially challenging. You would be well advised to have a strong support network to lean on throughout.
Also make sure you have the right lawyer. Your lawyer’s style is as important as the substantive expertise that they offer. For Divorce & Family matters that are appropriately characterized as high conflict, the reputation, profile and character of the lawyer that you choose will play a crucial role in your success.
Only lawyers with a unique combination of qualities can adequately manage this type of litigation. These lawyers will be tasked with the duty of vigorously, ethically and responsibly holding the opposition accountable wherever necessary. This approach is not second nature to all Family Lawyers. Many lawyers, much to their credit, are unapologetically better calibrated toward ADR. They are specifically attuned to solely resolving matters amicably and most of them will candidly confess that acrimonious Divorce & Family matters are outside of their comfort zone.
The best high conflict Divorce & Family Lawyers are able to easily compartmentalize. They are not caricatures or parodies. These lawyers have a comprehensive substantive knowledge of the law and considerable experience with the tools available to make full use of the legal system. They do not provoke or exacerbate conflict, but they are more than comfortable working within it. These lawyers can also fluidly transition toward an ADR model when the opportunity presents itself. They are capable of providing sound legal advice so as to invite fully-informed instructions. Once so instructed, they will wholly commit to optimizing their client’s outcome in whatever forum chosen for resolution.
Kirk Montoute LLP is proud to offer a team uniquely qualified to assist you with high conflict Divorce and Family matters
Written by Nigel Montoute