Donna’s Story: How the Adversarial System Thwarts Resolution, Escalates Conflict & Creates Nightmares

Donna’s Story: How the Adversarial System Thwarts Resolution, Escalates Conflict & Creates Nightmares

Donna (not her real name) first contacted NSRLP in the early days of our research interviews in 2011. Bright, educated, and motivated (Donna works at a community not-for-profit), Donna does not fit the crazy, anti-social, dysfunctional SRL stereotype that we have found ourselves working to challenge. She never imagined that her life and the lives of her children would get trapped in a vortex of escalating conflict with no end in sight. But in many ways, her story typifies the very worst experiences that people are having in the family law system. The adversarial system is setting her up so not only is she not a custodial parent, she can hardly be a parent at all.

This month we are focusing at NSRLP on dispute resolution services for SRLs and in particular, ways in which those working inside the system – lawyers, judges, mediators – can enable those without counsel to participate effectively in these processes. There have been some great conversations following our last blog (https://representingyourselfcanada.com/2014/07/15/how-and-why-lawyers-and-mediators-can-help-to-make-mediation-work-for-srls/, and see http://www.mediatebcblog.com/2014/07/15/how-mediators-and-lawyers-can-help-to-make-mediation-work-for-srls-new-post-from-the-national-self-represented-litigants-project).

Yet even as we make important steps towards expanding mediation practice to orient and include SRLs, Donna’s Story brings us down to earth with a bump. It represents a challenge for us all. Her story reminds us that as long as the central procedural value of the family justice system is a commitment to finding a winner in every dispute, what happens to individuals stuck inside that system will be a direct consequence of their capacity to win – that is, their personal power and resources.

Because winning means having the right people (those with expertise and status inside the system) do the right things (procedurally, tactically, technically) on your behalf. And this takes resources and personal power.

That means – how much legal assistance can a party afford? Can they afford someone to review their documents – to speak for them in hearings? Does their representative create a good rapport for them with other system players such as judges, court staff, third party agencies?

Because an adversarial process is about deciding who wins, it is also about making the other side lose. Any system that is about designating winner and losers is sustained by this dichotomy.

That means – how effective is each party at creating a conflict narrative that makes them the good guys, and the other side the baddies? How adept are they (and their representative) at creating allies within the system? How successful are they in  convincing key decision-makers – a judge, a social worker, an evaluating psychologist – that they are the good guys in this fight, and the other side are the baddies?

Donna knew that she was in for a tough time when her divorce became acrimonious and custody and access became a battleground between herself and her ex husband. She had a lawyer for a while, but like so many others in her situation, ran out of funds. Now she was in debt as well as holding on to her (uncertain, not-for-profit) job by the skin of her teeth, and was having to justify all that time off for going to court. When she saw her children she felt frazzled, emotional, off-balance – hardly how she wanted them to relate to her.

Donna made some mistakes in how she coped with the stress (as many of us do), developing a problem with alcohol for a period (now over). Of course, this only made matters worse – in a winning and losing system it is to be expected that any sign of weakness will be fallen upon by the other side and used to excoriate, condemn, judge. Donna continues to pay a heavy price for her lapse.

By this time, the conflict narrative was fixed. Donna was a “bad mother”. Her ex husband was a “good father”. Children’s aid workers work in the same system – and so they are under pressure to come up with unambiguous decisions about who is the appropriate parent. They look for narratives that can justify these decisions.  Those involved in Donna’s case now seemed bought into the stereotypes that had developed about Donna’s parenting. Each time Donna pushed back – arguing that a step taken was unfair or that a characterization of her in court was inaccurate – this was seen as “proof” that she was an emotionally distraught woman, unsuitable as a parent. Reports, letters, court documents and interim orders all follow this formula – Donna had a problem, we took her children away, she got upset, we further limited her access to her kids, Donna got more upset and asked the judge/ the supervisor at Children’s Aid/ Legal Aid/ a professor – in fact, anyone Donna could find with “authority” inside the system she was drowning in – to intervene, they branded her as “difficult” and “distressed” – and so it goes on.

Donna has been able to settle part of her case – the financials. She didn’t feel good about the settlement, but the lawyer who was representing her at the time told her that “You can either spend more on me, and go to trial … or you can settle now.’ Good advice perhaps but not very empowering for Donna – and ancient history now as the custody and access issues rumble on.

Donna has proposed mediation over custody and access numerous times to her ex. They have once met but did not settle. She has had a settlement conference with a judge – also with no result. Recent proposals made to Children’s Aid for family group conferencing or mediation have been dismissed without comment. Donna has even tried to draft her own settlement agreement, with the help of a coach – but this too came to nothing. She does not seem to be able to get the other side to take her seriously any longer. Unsurprising perhaps given that all the powerful system players – including the justice before whom she appears – seem bought into a simplistic good guys and bad guys narrative in which Donna is the loser.

And no one with any power in the system or influence in this conflict is proposing negotiating, mediating, or just talking about even an interim agreement. Meantime, Donna continues to fall to pieces and her two children remain stuck in the limbo of unresolved conflict.

How do we help Donna? The easy answer is that we cannot, until we fix the core values of the system. Until we have a family justice system that is not fixated on  who is right and who is wrong, until who you are becomes more important than who you know, until the conflict narrative does not need victims and bad guys and heroes – what can we do for Donna? And the hundreds of others – along with their children – in her position?

Donna cannot wait that long. She needs help – from a lawyer, from a mediator, from a coach, from a therapist, from a person inside the system who will advocate for her, from a person who will take her hand and help her breath the next time she has to go to court.

Are you a family lawyer? A family mediator? Can you help Donna? Do you have any ideas for how she and other family litigants can find their way out of this nightmare and towards just resolution? Please contact us at representingyourself@gmail.com

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