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Zeiderman, Conflict and Family Litigation

Neil Denny, of Mogers Solicitors, looks at handling conflict in matrimonial litigation using the example of the recent judgment in Zeiderman. This is the first of a series of three articles on the topic.

image of Neil Denny, solicitor, Mogers

Neil Denny, Solicitor, Mogers

Introduction
There must be few arenas where the experience of being in conflict is as pervasive as in family breakdown. As family lawyers we need to keep aware of how the very state of being in conflict shapes the decisions that our clients make, if we are to avoid conflict itself determining the separation process.

One approach to that is the formal study of conflict known as conflict dynamics, an area which is constantly developing.  There are volumes written on the subject every year from a range of different approaches - commercial, therapeutic, linguistic, psychological and philosophical. 

The application of conflict theory within family law is also increasing as seen most clearly within mediation and its younger sibling Collaborative Law.  Within these models, practitioners are introduced to radically different ideas about what motivates a separating spouse or partner.  The issue is no longer only about the allocation of resources but a much broader range of concerns.

In this series of three articles we explore how conflict dynamics impacts upon family breakdown.

This first article looks at the recent case of Zeiderman v Zeiderman [2008] EWCA Civ 760.  In our second article we will look in more detail at conflict narratives, or the stories we tell, concluding with a third article looking at Mills v McCartney [2008] EWHC 401 (Fam) in a rather different light.

“Externalising conflict”
One approach to conflict resolution is to “externalise the conflict.” This can be seen in the seminal negotiation handbook “Getting to yes” by William Ury, Roger Fisher and Bruce Patton. The notion is a powerful one.  It suggests that we are too ready to personalise conflict.  If two people were to have an argument about something, then that argument tends to get embroiled with the other person’s assumed characteristics.

An example can be seen in a conventional family situation.  A young couple struggles to keep up with the demands of housekeeping and budgeting. 

The relationship becomes strained.  A husband complains, possibly to his solicitor, that his wife is reckless with money, repeatedly driving the family into debt, despite his best efforts and previous credit card bailouts.

The wife complains that the husband is lazy, that he does nothing around the home.

They both feel slighted by the other and constantly look for incidents to support the perception they have developed of the other.

Consider for a moment what happens if the problems were seen as being independent of one another.  If the discussion can be changed to the need to budget, as opposed to allegations of profligacy, or better methods of meeting the demands of running a home, as opposed to a perceived characteristic of laziness , then that discussion can be better explored without a sense of attacking or being attacked, and without the need to constantly defend. 

In doing this, the presence of a labelled conflict becomes a third party within the marriage, and crucially, it lies outside of either husband’s or wife’s nature.  It is said to have been externalised.

A lesson from Star Trek
There is an old episode of Star Trek called the Day of the Dove.  In it, the SS Enterprise is held in the grips of a malevolent, badly super-imposed force field.  This translucent blob then proceeds to cause members of the crew to become embroiled in highly personified arguments with one another.  The arguments are fuelled by the force field to feed itself.  This is a metaphor for externalised conflict as a self perpetuating entity, needing to ensure its own survival.  It is only defeated once the crew develop an awareness of how they are being tricked into these arguments. 

Ken Cloke, a leading mediator and author writes in his book “Mediating Dangerously” about being “Seduced by conflict” and that is a seduction that we all too often fall for.  It is the compulsion for a client to break off from a sustained conciliatory approach and exclaim “That does it!  Let them have it!”

The concept of experiencing conflict as being external to us has great application.  If we can accept the abstract notion of conflict as a seductive force, tempting us to play by its rules, then we can always test ourselves, or our clients’ instructions, against that model.  We can ask “Are these instructions really getting to the core of our client’s concerns?”  The alternative is they are the result of conflict’s successful seduction.

Applying conflict dynamics to family litigation
Consider the recent case of Zeiderman v Zeiderman.  This case is of interest even though Wall LJ in his judgment referred to it as not being “A precedent for anything nor should it be treated by the profession as such.”  I use it here, not as a precedent, but as an example of how conflict fuelled litigation can look.

The facts are not that unusual.

The wife was alleging that her husband was dishonest.  She was convinced of this and that led her to make 15 or so separate allegations of conduct attacking her husband’s credibility within ancillary relief proceedings.

It can be seen, therefore, that the conflict here is internalised, by Mrs Zeiderman, within Mr Zeiderman’s characteristics as she perceived them to be, namely dishonesty and deceitfulness. 

Mrs Zeiderman would have felt entirely justified in adopting such a stance, particularly when the Judge in the first instance felt that the weight of the many allegations became inequitable to disregard.  An order was made against Mr Zeiderman effectively providing his wife with all of the available capital and 50% of his net income.

Not surprisingly the matter went to appeal, twice.

The convincing nature of conflict perspectives
In Lord Justice Wall’s judgment we subsequently learn that the basis of evidence supporting Mrs Zeiderman’s allegations was little more than “An assumption and a belief”.  The attempt to prove concealed assets was said to be “Extremely weak, amounting to no more than `I assume that’…”

This belies another characteristic of conflict situations.  We create a perception of one another that has very little grounding in reality but is utterly convincing to ourselves and sometimes the people we are retelling our stories to.

These viewpoints are therefore sincerely held.  They dictate how we interpret everything that person does.  If the husband in the earlier example believes that his wife is profligate with money, for example, then everything that she does will be seen by him in that light – even when it makes no sense to do so. 

In Zeiderman, we can see how trust is lost between the couple and so everything Mr Zeiderman does, or has ever done, according to Mrs Zeiderman, becomes proof of the Husband being untrustworthy.

Unfortunately for the whole Zeiderman family, this perspective from Mrs Zeiderman proved to be compelling and other people were successfully recruited to her cause.  Mrs Zeiderman recounted no less than 15 ways in which her husband cannot be trusted. 

She has already recruited her solicitor into presenting her case in such a way – although we cannot know just what warnings she had received from her solicitor about adopting such a litigation stance – and it is clear that she was successful in recruiting the district judge to agree with her interpretation.  This is all the more remarkable given the criticism of the standard of evidence put forward by her.

“And another thing…!”

Another conflict dynamic can be seen in the contagion of the conflict.  We can see that Mrs Zeiderman embarked on a campaign of criticising everything about Mr Zeiderman with no regard as to whether the issue being complained about was of relevance to the ancillary relief matter in hand.  See Lord Justice Wall’s comments at paragraph 16 where he states “Equally it must be doubtful as to whether or not it was appropriate to deal with individual aspects of conduct during the course of the marriage which, as I read them, had frankly no bearing financial matters.”

Conflict often drives us to inflame valid grievances with a wide range of additional complaints, in an attempt to add weight, bolster our perspective of, or further discredit, the other party.  It is the “And another thing…” response that we will all be familiar with from our clients and our own conflicts.

There is a story about two grumpy diners, complaining in restaurant.  The first says “I don’t know why we keep coming here.  The food is awful.” To which his colleague responds “Yes, and the portions are so small.”

Conflict irony
To end this article I want to highlight what I refer to as Conflict Irony.  This is the phenomenon where the state of being in conflict achieves the very opposite of whatever our objective may be.

With Mrs Zeiderman, one imagines her objective was to safeguard and maximise her financial position post-separation.  What is seen instead is an initial hearing, followed by two appeals to the High Court and then Court of Appeal.  The result will have been a large reduction in the family assets available for distribution resulting in less provision.  Indeed we learn from the judgment that “Mrs Zeiderman has this morning come before us and made clear the difficulties financially in which she currently finds herself.”

Lord Justice Wall encourages the parties in his closing statements that there is still time for “Negotiation, mediation and compromise.”  He is realistic enough to know, however, that having heard the parties that he felt it “Unlikely that compromise could be achieved.”  Lord Justice Wall himself was clearly aware of just how firm a hold conflict led behaviours has had upon this case.