High Conflict Separation and Divorce

by Thomas C. Dart

A relationship breakdown affects people in different ways. Some people know that they have grown apart, accept that fact and are able to move on with their lives rather quickly. These are the people who can come to a quick and rather painless resolution of their parenting and financial issues.  If they use lawyers, their legal fees are low and they always reach an agreement without very much fuss. Other people, (and I think these are the majority), are torn apart by the failure of their relationship.  Depression, anger, frustration, all very strong emotions, control their behavior making it impossible for them to think rationally. It takes these people much longer to go through the process. For varying periods of time, they can’t let go of the feelings of hurt and they can’ t move on – sometimes for many years.  However, with appropriate counselling and with an appropriate method of dispute resolution, such as mediation, or collaborative law, these people can find a peaceful resolution and they can eventually move on with their lives. Sometimes they need a trial as well to resolve legal issues which cannot be resolved by the other dispute resolution methods. Such a trial is what the justice system is  all about – facts and evidence are presented in a civil manner, with appropriate decorum, an experienced and knowledgeable judge makes the appropriate decision.  Sometimes an appeal is taken, but eventually, the litigants accept the result and move on. Often they become stronger individuals as  a result of their experience in resolving the conflict in such a humane and civil manner.

Then there are the people who have what psychologists and psychiatrists characterize as “ a personality disorder”.  Bill Eddy, a noted mediator and lawyer who has written extensively about high conflict families, notes in his book¹ that “personalities, not issues”, drive the conflict for the High Conflict Person whom he terms the “HCP”. Professionals involved in the legal justice system from lawyers to judges to mental health care professionals have little influence or experience in controlling this type of conflict. The HCP always go to court. They see this as the only way to resolve their conflict. They want to inflict as much damage on their partner as they can and they view the court system as a means to accomplishing this. They very often don’t even comprehend that it is there personality disorder which is driving the conflict and that they need mental health care more than they need the justice system.

It takes training and a high level of expertise to enable people with personality disorders to finally resolve conflict.  Professionals who try to assist such people often run out of patience. They often don’t get paid and their HCP clients frequently report them to their professional governing body because they never can live up to this type of  client’s expectation. Needless to say, many professionals have simply ‘dropped out’ of handling such cases and have dropped out of handling family law cases altogether. In Ontario, for example, many psychologists and other mental health care professionals who perform the very valuable service of providing guidance to Judges handling parenting disputes are retiring from this aspect of their profession. This is a great loss to our system.  The HCP often ends up representing him or herself in the family justice system and is then entirely out of  control. As we live in a society where everyone is entitled to his or her day in court, the system unfortunately has to accommodate this kind of individual.

High conflict personalities cost the justice system a great deal of money. They tie up the court system with their ongoing feud. Every order which  a judge makes is either disobeyed or challenged in some way. They change lawyers often, causing further delay. If things don’t go their way, the conflict only seems to increase, not dissipate.  Their “day in court” never ends – it just moves around the system from judge to judge and courtroom to courtroom.  Other legitimate users of the justice system have to wait while the HCP consumes so many resources which would otherwise be available for them.

If the HCP causes so many problems in the justice system, why then are they tolerated? More importantly, how can the system adjust to handle them? Fortunately, there are numerous organizations now researching this issue, providing wonderful insight and guidance.

The High Conflict Institute LLC was founded by Bill Eddy and Megan Hunter in 2008. In Ontario, the High Conflict Forum takes place annually. It is organized by Jewish Family & Child and each year the forum brings attention to this topic by presenting a one or two day conference on this subject. Leading speakers include Professor Nicholas Bala, a Queen’s University Law Professor who has done extensive research on this topic. Bill Eddy has also presented at this forum. There are of course many others who have taken up the challenge, studying the issue, trying to understand its roots and most importantly, trying to come up with answers.²

All that is needed now is for the various government bodies to take a leadership role. Someone needs to take all this vast amount of research, create some recommendations and bring the resources to bear on an appropriate resolution.

Perhaps, in time, people who need the services of the mental health profession will obtain that service instead of the services of the adversarial justice system which only provides a forum for their ongoing disastrous conflict. Maybe then, as well, the people who truly need the justice system to resolve legal disputes will have greater access to those services too.

¹ High Conflict People in legal disputes HCI Press, Nov, 2009.

² Web site of the High Conflict Institute is http://www.highconflictinstitute.com/  and the web site for the High Conflict Forum is http://www.jfandcs.com/client/jfcs/jfcs_2011_lp4w_lnd_webstation.nsf/page/High+Conflict+Forum!opendocument

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