The “High Conflict” Label in Divorce Cases

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When the term “high conflict” is used to characterize a divorce making its way through the court system, it can often be a mask for what is happening behind the scenes. The term is used in the legal system to describe extensive litigation or conflict between parents that happens during the course of a separation and divorce. In such a case, parents may be encouraged to attend mediation, and could risk ongoing custody agreements if they are not able to overcome their disagreements (Department of Justice 2019).

However, research has argued that the “high conflict” label can be dismissive of abuse happening within a relationship. A report released by the Department of Justice revealed that some respondents felt that the label made abuse appear to be mutual between two parties and ignore the gendered aspects of violence that often occurs between intimate partners. The report states that “The common relationship between woman abuse and high conflict cases warrants careful analysis of each case, including consideration of the social context in which the conflict or abuse occurs” (Department of Justice 2019). Furthermore, the report also points out that, when parents who are labelled “high conflict” are forced into mediation to reach an agreement, “Making high conflict parents (and, depending on respondents’ definition of high conflict, sometimes violent parents) pursue joint problem solving and conflict resolution would not ensure safety” (Ibid 2019).

Sometimes, fear of being labelled “high conflict” can discourage a survivor from reporting abuse. A woman in Saskatchewan, who was interviewed by the CBC about her experience of coercive control in a relationship, was encouraged not to allege abuse before the courts because the label of “high conflict” could force her into mediation. Anna Singer, a family lawyer interviewed on the subject, explained that “It’s as if they’re both behaving badly, they’re both abusing the court system or being needlessly adversarial, increasing costs,” when in fact one parent could be using this system to continue to exert control over the other (CBC 2022). In this situation, the label of “high conflict” can enable ongoing abuse by presenting both parties as equally responsible for the conflict. The legal system must develop better understandings of common patterns of abuse, to ensure that survivors are not penalized for their own experiences. A survivor should never be blamed for their abuse and, consequently, yet the “high conflict” label allows survivors to be stigmatized for naming their abuse.

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