Aftermath of a Flawed System

Lawyers, judges, mediators, mental health professionals and others who deal with high-conflict cases, especially in family law, unwittingly entered a high-risk profession. They don't enter law or grad school with a desire to someday have clients who can be the most volatile and dangerous in society, putting themselves at risk both physically and emotionally. Before long, the cases and clients begin to have a pattern that becomes all too familiar . . . blame, extreme behaviors, intense emotions, revenge, and lots of all-or-nothing thinking.

Clients who fill the heart with dread, producing anxiety, just by seeing a name on the day's schedule. Another exhausting, intense meeting going over the same complaints. Custody evaluations, trials, repeat hearings, parent coordination meetings. The conflict is endless and even the very best at handling such difficult cases eventually wear down and experience some kind of trauma, whether they realize it or not.

A few facts about high conflict cases:

  • they go on forever
  • they are expensive
  • they drain the public's resources
  • they take a toll on those who work with them
  • too many professionals involved

Why Are They So Difficult?

Good question. Simply, at least one of the parties (parents) has what Bill Eddy calls a "high conflict personality" and what I call a "complicated operating system". They don't operate like 90% of the population. They are driven into conflict and toward professionals who will ensure the win and to courts that will give them what they deserve--full custody of their children. Most people (probably 80-85%) eventually find some middle ground. These folks don't. 

A One Size Fits All Approach That Works for the 90%

We've come a long way in the family courts with mandatory parent education, parent coordination, alternative dispute resolution methods like collaborative divorce and mediation, but the system itself relies on an adversarial system--one that can work for the approximately 90% who lack a complicated operating system. For the rest, they're left with a system that can only take their complexities and memorialize them in litigation concrete. 

The adversarial nature of our court system is attractive to someone who already has an all-or-nothing, win/lose mentality and once they arrive on the courthouse steps, the very nature of "adversarial system" sets their already inflexible, adversarial personality in stone--a high conflict case forever. I WILL HAVE MY DAY IN COURT!!!!!

Despite our best efforts to provide alternative methods, the system is not the right setup for them. They're in need of something different, something designed for them.

In medicine, the one size fits all approach is losing ground to a more personalized, predictive, and precision approach. Why couldn't we do the same with our family courts? (Note, I am not advocating for doing away with courts). For example, after a divorce or separation is filed, instead of the typical litigation path, wouldn't it be better to provide a program that helps them calm down and learn skills for resolving conflict. I predict that 80-90% would effectively and more efficiently (cost savings to the public and emotional savings to the children) settle their cases outside the court. The behavior of the other 10-20% would become obvious within a few meetings. In this era, we have tools to identify potentially high-conflict behaviors and with those tools we could shepherd people into this category into a system designed for them. A very small segment of them would likely be classified as potentially dangerous and/or high risk to their ex, their children and to the professionals who work with them. In those cases, protections would be put into place for all involved.

So why don't we do this? Many reasons: fear of change; reduction in profitability; indecision on which program or method to use; protection of the profession. Collectively the family law profession is a group of hard-working, dedicated, compassionate people.

When will we do this? When will it become important enough for the system to begin to wake up and realize that this is not good for families or the profession? 

Help for Professionals

If you work with high-conflict family law cases, you probably have some form of trauma or burnout: PTSD, vicarious trauma, or some type of ongoing stress that's causing you to lose sleep, hair, or your own sanity. Don't let it. Here's a good book to help you: Second-Hand Shock: Surviving & Overcoming Vicarious Trauma. The authors know first-hand what it's like to be the target of a dangerous, deadly litigant. See here

If you want to better understand how to identify potentially dangerous clients, read Bill Eddy's newest book, 5 Types of People Who Can Ruin Your Life, in which he lays out his WEB method® (words, emotions, behaviors) of identifying potentially dangerous people early on.

The exasperated opinion of Megan Hunter, MBA, and CEO of the High Conflict Institute.