A New Approach to Family Law Conflict

Jennifer Hetherington and Kay Feeney

Abstract

We find ourselves as two experienced practitioners who don’t flinch from the pointy end of work after a relationship ends.  Instead, we try to find new ways to do things and impose on ourselves the discipline that work focussed on agreement without conflict requires.

Our seeking new ways and different ways to work towards agreement is driven by a desire to engage in the high function work of resolution not the easy well-worn path of dispute.

Dispute is easy. Resolution takes effort.   Perhaps a description as simple as impulse control paints the picture readily.  It is not just the clients who must embrace impulse control though. We must too.  As Viktor E Frankl so eloquently stated:

“Between stimulus and response there is a space. In that space is our power to choose our response. In our response lies our growth and our freedom.”

Neuroscience now informs us that there are many complex elements to impulse control but central to staying centred and calm, is a sense of safety.

If parties feel safe they are less likely to be managing primal impulses from their bodies: chemicals to enhance the capacity to deal with threat and the drive to survive.

Do lawyers ever model an expectation that agreement without conflict is achievable?

Is the dispute foregrounded or is the resolution?

By using terms such as “dispute resolution” and “conflict resolution” are we frontloading parties to believe they are in conflict or will experience it?  Are we creating a self-fulfilling prophecy?

If we, the lawyers or mediators act as if there is a conflict or will be one, are we potentially creating it for the parties or accepting that their being in conflict is normal or inevitable?

We are so often the ‘first responders’ to a separating couple. We have the ability to set the tone for the way they will approach their divorce.

We consider our roles in our model to be to guide the parties towards agreement by problem solving.  We accept and acknowledge that there will be different perspectives, difficult moments, disagreements about what might be best for their children, but we do not couch this in the language of conflict or react to it in that way.  It is simply a problem that needs to be solved.

By our shifting the foregrounding to resolution (without the addition of the words conflict or dispute) our clients are often relieved to find they are not going to be subject to game playing.

We are not going to indulge ourselves nor them in that way. Communication is purpose driven. The purpose is clear and articulated.  If a word, thought or action might endanger that purpose, it is reconsidered.

We quite literally try to map out paths that won’t cause trouble.   We drill down into plans and ask questions about how those plans might feel or play out for them. We are problem solving experts acting as guides.

If a problem arises, we are there to defuse it, normalise it and help the parties develop options, based on their interests.  We are listening primarily with the intention to understand – our clients and each other – not to respond.

We have used our model in numerous scenarios including:

• When couples wish to remain operating a family business post-separation
• Loving couples seeking to enter into a Binding Financial Agreement (pre-nup)
• Couples seeking to separate and minimise the impact on their children.

One of the particular benefits of the model is that it enables us to provide neutral advice with no bias towards a particular client.  This becomes advice that parties can truly rely upon.

The model is continually expanding and evolving as we find more ways in which it can be applied with the ultimate goal of avoiding conflict, because it is not inevitable.

Read the entire paper:    A New Approach to Family Law Conflict

Workshops accompanying this paper were presented by Jennifer Hetherington and Kay Feeney of Feeney Family Law at the Association of Family and Conciliation Courts Annual Conference in Boston Massachusetts in May 2017 and the Association for Conflict Resolution – Greater New York Chapter Annual Conference at Cardozo Law School New York in June 2017