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Nadia 10-22-2012 11:31 AM

Litigation and High Conflict People
 
As I sat there watching my ex-husband last week, fire off allegation after allegation in his oral submissions and play the "victim" card, I was struck by how litigation only seems to confound the problem, by providing litigants a platform to vent.

It was "venting" because none of his allegations were supported by any written evidence. He had failed to submit a response to my application for motion to vary (he claimed he had never received it); he had not submitted a case conference brief (although he did not deny he had recieved mine) and he had made zero effort to settle (although he had received several offers to settle from me).

But because this was a Case Conference and he was given an hour to speak his mind (uninterrupted); he walked out of the court room with a feeling that he had been "heard" and somehow been "validated" in his sense of reality.

My question is this, how useful is it to attend a case conference/or mediation with a party that is high conflict and has no mind to settle on anything?

fireweb13 10-22-2012 12:11 PM

In my opinion it is not productive for your case directly. More as it helps the courts to understand who your ex really is. With mediation it can show that your tried to work together, and same as the case conference. You want to show that you are trying your best to work something out and persuing all avenues instead of going to a full motion. Its tough but you will make it through, just have to stay on the highroad.

baldclub 10-22-2012 12:17 PM

Quote:

Originally Posted by Nadia (Post 112311)
My question is this, how useful is it to attend a case conference/or mediation with a party that is high conflict and has no mind to settle on anything?

I was reading a while ago some articles by William A. ("Bill") Eddy, a cofounder and president of the High Conflict Institute in San Diego, California. One article where he talks about negotiation may help you: here

I'm thinking in particular you can use the case conference and/or mediation to understand the other the other party's side better, understand the strengths or weaknesses of their approach and basically:

If the other side is taking a "win-lose" approach, you should do the same -- or encourage them to join you in a win-win approach.

I'll post the article here if that's ok.

The Art of Negotiation

Everyone negotiates, almost every day. While successful negotiators seem to practice an art more than a science, certain principles seem to be present which anyone can learn.

Two Basic Approaches
"Win-lose" negotiations are most often over a single item and each party tries to get the best deal, to the detriment of the other. "Win-win" negotiations involve understanding each other's interests and finding solutions which will benefit both parties. While win-win is generally more satisfying and can be attempted in any situation, it is especially important in ongoing relationships. If the other side is taking a "win-lose" approach, you should do the same -- or encourage them to join you in a win-win approach. The following principles apply to both approaches:

Respect
When the other side feels that you respect him or her, it reduces defensiveness and increases the sharing of useful information -- which can lead to an agreement. When people feel disrespect, they become more rigid and likely to hide information you need.

Trust
People tend to be more generous toward those they like and trust. An attitude of friendliness and openness generally is more persuasive than an attitude of deception and manipulation. Being honest about the information you provide and showing interest in the other side's concerns can help.

Preparation
This is the most important step in many negotiations! You want to be as thoroughly informed as possible about the value of the item(s) you are negotiating -- both in general and to the other side. For example, if you know a car's market value is $20,000 you will be less likely to fall for an outrageous offer -- which many sales people make to pull you in their direction.

Know your bottom line
In most negotiations, there is a point beyond which you do not want to go; when you will use other alternatives. Generally, it helps to decide this in advance and not to disclose it at the start. You should also be aware that this may change with more information and new ideas. You may decide to go to court, although the outcome is often unpredictable -- and expensive! You may wish to consider mediation or arbitration instead.


Cautious Disclosure
It is fully appropriate and wise to start a negotiation without disclosing all of your information and your "bottom line." If the other side is using a "win-lose" approach and you disclose too much too soon, you will lose all of your bargaining power. If the other side is using a "win-win" approach, then you can work together to "expand the pie" of solutions. They will disclose more and more information and you can do the same, to build trust and create better solutions.

Ask Questions
Before stating a position or making proposals, it is very helpful to inquire about the other side's interests and concerns. This will help you understand what is important to the other side and may provide new ideas for mutual benefit. Ask clarifying questions to really understand the other's concerns in this negotiation. This will also help you determine their approach to negotiations: win-lose or win-win. You can then make more realistic proposals.

Show your strength
If necessary, let the other side know in detail how strong your point of view is -- by showing them financial information, legal precedents or your willingness to hold out or simply walk away. Try not to show weaknesses-such as an urgency to settle-unless you are working together on a win-win solution.

Making Proposals
It is customary and proper to ask for more at the start than you expect to receive in the final agreement. By proposing your ideal settlement, it lets the other understand your needs and allows you to show good faith later on by revising your offer after hearing their response. It helps to make a new proposal, rather than to criticize the one the other side made. By brainstorming a list of options together without criticizing them, an agreement may emerge which no one thought of before -- which everyone can live with.

Write It Down
Many potentially great agreements fall apart because everyone's memory of them was different. You should write it down so that both parties understand the exact terms -- who does what, when and where -- without mistaken assumptions.

Tayken 10-22-2012 01:26 PM

Quote:

Originally Posted by Nadia (Post 112311)
As I sat there watching my ex-husband last week, fire off allegation after allegation in his oral submissions and play the "victim" card, I was struck by how litigation only seems to confound the problem, by providing litigants a platform to vent.

Phil Epstein, probably one of (or the most) respected family law lawyers in Ontario has been quoted stating:

Quote:

Only 10 per cent of cases go to the court system, and an even smaller percentage of those - less than 5 per cent, Mr. Epstein says - go to trial. All are considered high conflict, "and it's no coincidence that the same percentage of the population - 10 per cent - have borderline personality disorders or mental health issues," he says, adding that delays in the court system often happen because there is not enough capacity to handle the number of cases.
The divorce that never ends - The Globe and Mail

Quote:

Originally Posted by Nadia (Post 112311)
It was "venting" because none of his allegations were supported by any written evidence. He had failed to submit a response to my application for motion to vary (he claimed he had never received it); he had not submitted a case conference brief (although he did not deny he had recieved mine) and he had made zero effort to settle (although he had received several offers to settle from me).

Standard set of excuses that negative advocate lawyers try as well. Doesn't work when a lawyer does this stupid stuff but, some times judges are more lenient.

I have seen a senior SC judge hold a returning motion on an emergency and order the lawyer who's client made the application to the emergency go back to their office and get the materials that were served upon them by the Respondent properly. Funniest thing to have to watch a senior judge, tell a lawyer to do their job, go get the document that was properly serviced and come back in the afternoon.

Quote:

Originally Posted by Nadia (Post 112311)
But because this was a Case Conference and he was given an hour to speak his mind (uninterrupted); he walked out of the court room with a feeling that he had been "heard" and somehow been "validated" in his sense of reality.

Let him. You can't change someone like that. They can only change themselves.

Quote:

Originally Posted by Nadia (Post 112311)
My question is this, how useful is it to attend a case conference/or mediation with a party that is high conflict and has no mind to settle on anything?

Mediation fails when:

1. One or both parties to the mediation have a mental illness.
2. One or both parties to the mediation have a substance abuse issue.

Good Luck!
Tayken

Nadia 10-22-2012 04:10 PM

The article by Bill Eddy on "Negotiation" is actually very helpful. Thank you Baldclub for sharing this. I have to start focusing on what "I" can do instead of focusing on what he is doing or not doing. A good starting point is "listening" to his concerns. He may not express them well but I am going to have take them on board in any response to his position. In the end, it will be far better that these concerns are recognized and addressed by me before he even stands up and starts his "poor me" card.

In respect to negative advocacy, I think there is no excuse for not filing materials in line with the Family Law Rules. Pretending that you did not get the materials might get you off once, but if you are repeating the same excuse over and over again, then it could be seen as a delay tactic. Or worse.

Tayken 10-22-2012 04:31 PM

Quote:

Originally Posted by Nadia (Post 112425)
In respect to negative advocacy, I think there is no excuse for not filing materials in line with the Family Law Rules. Pretending that you did not get the materials might get you off once, but if you are repeating the same excuse over and over again, then it could be seen as a delay tactic. Or worse.

You could have and should have asked for costs to be held (or determined) for the CC appearance based on the fact that the other party filed NOTHING in accordance with the Rules. You could have and should have requested that an endorsement setting out the "facts" as to why the materials as required under the Family Law Rules were not served. A good judge would have documented every excuse given and made an order for disclosure on the missing materials. Not necessarily the CC Brief but, Financial Statement and other technical disclosure requests made prior to the CC.

A tip for you when going before the court on the next appearance to consider requesting. The best way the court to document bad faith conduct is in endorsements that can relied upon later on a costs award decision.

Nadia 10-22-2012 04:34 PM

It was documented in the endorsement, but I did not ask for costs to be reserved.

WorkingDAD 10-22-2012 04:43 PM

Quote:

Originally Posted by Nadia (Post 112431)
It was documented in the endorsement, but I did not ask for costs to be reserved.

so you screwed. Move on and make sure you will not make the same mistake again.

Tayken 10-22-2012 05:09 PM

Quote:

Originally Posted by WorkingDAD (Post 112433)
so you screwed. Move on and make sure you will not make the same mistake again.

WD is being blunt and honest. Costs are something that all litigants need to be aware of and REQUEST of the court. Lawyers always forget for some reason. So even if you have a lawyer make sure you over communicate that you are seeking your costs and that a formal request for the costs be made.

Nadia 10-22-2012 05:48 PM

Thank you Working Dad and Tayken, I will not be making the same mistake again.


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