June 4, 2014

Procedural vs. Substantive Conflict

Categories: Collaborative LawDivorce

177307632Recently, I participated in a combination SENE/FENE (Social/Financial Early Neutral Evaluation) before a neutral whose settlement rate, according to my supervising attorney, hovers anecdotally around 97%. Unfortunately, my recent case was among the 3% that didn’t settle, and as I reflected upon the reasons for that, I reflected also upon the advantages that the Collaborative process offers over traditional litigation. I observed during the SENE that there appeared to be two levels of conflict between the parties as they spoke to each other. On one level, the substantive level, the parties explicitly disagreed about how their case should be settled: the terms of the parenting plan, who would get the house, etc. But on the other level, the procedural level, the parties were speaking to each other in a way that didn’t acknowledge their very different styles of approaching the situation they were in, for better or worse, together. One member of the couple was quite emotional, the other quite analytical, and both were either unaware of or unwilling to breach their stylistic gap. As a result, very little of substance was accomplished. Put another way, the procedural conflict between the parties stymied progress on the substantive conflict between the parties.

The Collaborative process, with its rules of engagement signed by all parties involved, at least attempts to deal with procedural conflict between parties before dialogue over the substantive conflict even begins. That way, when procedural conflict inhibits substantive dialogue, there is an agreement among all parties to which they can refer in order to break the procedural logjam. Traditional litigation has no such agreement, so ultimately, divorcing couples who have trouble communicating have little support beyond the (hopefully sound) advice of their attorneys. This is not to say that substantive conflict is not real or important, only that procedural conflict can impede a negotiation as easily as substantive conflict can.


Joshua Gitelson comes to the practice of law via a first career in the entertainment industry in Los Angeles, as a film editor and writer for motion pictures and television. The son of a lawyer on the one hand and a clinical psychologist on the other, Josh has gravitated toward family law as an amalgam of these two “family businesses.” His parents’ amicable divorce inspired him to help others through the divorce process with as little rancor and conflict as possible. As a result, Josh has embraced the collaborative divorce model as a technique to complement his work on divorce in the traditional litigation mode. Learn more at https://www.lindawray.com/CM/AttorneyBios/JoshuaGitelson.asp.

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