De-Escalating Conflict through Service Delivery

Posted By Mark Baer || 10-Jun-2015

On February 5, 2015, I presented at the San Gabriel Valley Family Law Study Group on "De-Escalating Parental Conflict Through Service Delivery." The program focused on strategies and behaviors attorneys can leverage to reduce the risk of parental conflict.

It was a one hour presentation and it was essentially given to family law litigators. Rather than doing it as a lecture, I decided that we should have an interactive discussion on certain topics. I viewed the program in the same way as a cruise. Those in attendance got a taste of the various concepts and none were discussed in depth because of the limited amount of time and I wanted to make the attorneys think in a more global sense.

We talked about language and the fact that the words used influence behavior. We discussed how service of process can exacerbate emotions, depending upon a number of factors, such as where it is served and who else is present when it is served. We discussed assumptions and the fact that they are dangerous and why. We discussed whether or not the other parent is a bad parent, just because the two parents can't agree on a parenting plan or some other issue(s) pertaining to the children. If not, how might they be able to advocate just as effectively, without unnecessarily exacerbating the conflict level more than litigation will on its own. We discussed the blame-game and whether or not that solves anything. We talked about "I-Statements." We discussed the reasons that many people believe that the word "but" should be eliminated from our vocabulary. We talked about the power of apologies and the fact that depending upon how it is done, it doesn't have to be an admission of liability. We discussed forgiveness. We also talked about vulnerability. We addressed the difference between shame and guilt and how many aspects of family law related to areas of shame. We addressed the praise to criticism ratio and how that impacts dynamics. I had a number of other topics I was prepared to discuss, but we ran out of time.

Ultimately, the program focused on the "counselor" aspect of being an attorney. I am happy to report that in general, the program was very well received by my family law colleagues. My understanding is that those who didn't care for the program complained that it was too basic. The attorney who conveyed this information to me also sent me an email that stated as follows: "Great presentation last night! Really spot on. Some of what you said was WAY over their heads but still important to get the message out!"

You see, social and emotional skills such as empathy are essential to conflict resolution. Therefore, those best suited to work in conflict resolution should have high EQs (Emotional Intelligence). It has long been known that while lawyers tend to be analytical because the field requires it, they generally score poorly in terms of their EQ level. This isn't a problem when their job is merely to assist in resolving disputes. However, problems ensue in situations in which interpersonal relationships are involved, including but not limited to disputes between family members, employer/employee, neighbors, and business partners. It doesn't help that people frequently confuse "conflict resolution or management" with "dispute resolution." People with low EQ levels can generally do one, but not the other. Furthermore, legal disputes are generally resolved through litigation, which is an adversarial process and thereby exacerbates the conflict in order to resolve the dispute.

To make matters worse, there seems to be a great deal of confusion as to what litigation entails. "Litigation law refers to the rules and practices involved in resolving disputes in the court system. The term is often associated with tort cases, but litigation can come about in all kinds of cases, from contested divorces, to eviction proceedings. Likewise, most people think of litigation as synonymous with trial work, but the litigation process begins long before the first witness is called to testify. In fact, the vast majority of litigated cases never reach the inside of a courtroom."

"Litigation is the most traditional form of dispute resolution and involves the use of the courts. It is initiated by filing a lawsuit in a court. By definition, litigation is an adversarial process. How often does litigation improve interpersonal relations? Unfortunately, the answer to that question is never.

Somehow, many family law attorneys have convinced themselves that they are not litigating unless a judge makes a ruling. In fact, some attorneys actually believe that a matter is not litigated unless it goes to trial. However, pretrial litigation consists of litigation planning, fact investigation, legal research, discovery, pretrial motions, and settlement strategy. In an effort to make it appear as though family law litigation is not a lawsuit, the parties are referred to as Petitioner and Respondent, rather than Plaintiff and Defendant. Nevertheless, the Summons itself states, 'You are being sued.'"

In any event, shortly after the presentation, one of the attendees invited me to lunch. Other than seeing this attorney and talking to him briefly at various family law lawyer meetings, we really didn't know each other well. However, the attorney was familiar with my various articles and my perspective with regard to family law litigation.

Over lunch, he told me that he really enjoyed my presentation and agreed with most of what I had to say. He also told me that he doesn't feel comfortable admitting this to any of his litigation colleagues because they just don't "get it" or don't want to "get it." He said that I was very respectful to the litigators in my presentation and I never mentioned mediation or collaboration in the presentation. Nevertheless, he told me that everyone in attendance knows my perspective and therefore my views were still implied. He also mentioned that he had already incorporated into his practice many of the tools I covered in the presentation. We discussed some other concepts that interested him and which I didn't have an opportunity to address during the program.

The following day, he sent me the following email: "I appreciate you taking the time to share your wealth of knowledge and perspective with me. I enjoyed our lunch."

We've kept in contact since then and I have referred him a couple of cases. This afternoon, we got together for lunch once again. Since he picked up the check for our last lunch, I was going to pick up the check this time. He then insisted, telling me that he was recently retained by two clients I had referred to him. He also mentioned that he had incorporated other concepts he had learned through me into his practice and that he was very pleased with the results.

We talked about the criticism that many family law attorneys have of me is their belief that I don't think that any family law matters should be ever be litigated. He tried to reconcile the fact that I refer him litigation matters with the belief that I don't think that any family law matters should ever be litigated. He said that I couldn't possibly hold those beliefs and be referring cases to family law litigators. In other words, such beliefs are based upon inaccurate information and/or flawed logic. Either way, I wonder how attorneys who run with inaccurate information and have flawed logic handle their cases. People are consistent, so I would have to assume that they act similarly when representing clients. Scary, isn't it?

As an aside, he brought up the name of the attorney who has initiated each of the attacks against me on the listserv for the Family Law Section of the Los Angeles County Bar Association. Interestingly enough, the comments I hear from people who have been involved on cases with him have been consistent and the word "unreasonable" would be an understatement. If lawyers like that are in the camp that dislikes me, I am perfectly fine with being disliked by them.

If litigation is necessary, there are different ways of litigating. You can effectively litigate without unnecessarily escalating conflict. Furthermore, there are things you can do to deescalate conflict, while still litigating. I oppose unnecessarily escalating conflict in litigation and believe that litigators should try and deescalate conflict, to the extent possible. Is that too much to ask?