For Better, Worse, Or Divorce Podcast

Brian Walters meets with Olivia St. Clair Long, founder and principal attorney of the O. Long Firm in Illinois to do a deep dive into high-conflict divorces and their experience handling these types of cases. Brian and Olivia share their insights, discuss legal strategies, emotional challenges as well as resources in high-conflict divorces and what makes these types of cases unique. They wrap up the episode by answering a few listener questions.

Your hosts have earned a reputation as fierce and effective advocates inside and outside of the courtroom. Both partners are experienced trial attorneys who have been board-certified in family law by the Texas Board of Legal Specialization.

Brian Walters: Thanks for tuning into our For Better, Worse, or Divorce podcast where we provide you tips and insights on how to navigate divorce and child custody situations in the state of Texas. I’m Brian Walters and I’m joined by Olivia St. Clair Long, founder and principal, attorney of the O. Long firm in Illinois. We will be discussing high-conflict divorces. Olivia, tell us a little bit about yourself. Start with something interesting or end with something interesting. More than just, “I went to law school, I was on some law review”. Something that normal people would be interested in.

Olivia St. Clair Long: Sure thing. Well first, thank you so much for having me on, Brian. It’s a pleasure to talk to you and to the folks that you speak to. I think the most important thing to your listeners might be that I went to the University of Texas and I was an athlete there. I was actually a rower at the University of Texas about 20 years ago.

Brian Walters: Yeah, I remember the little rowing shed thing they had down on Lake Travis, right? So it was right there.

Olivia St. Clair Long: Yeah, down on Town Lake right next to where George W. Bush used to run around on the trails. He had just become president right when I started going. Everybody remembered seeing him and his entourage when he was governor.

Brian Walters: I have a little run in with him around the same time.

Olivia St. Clair Long: A lot of people have that story.

Brian Walters: Well, it’s Austin. Back in those days it was a much smaller place. I was dating a girl whose mother was his secretary essentially, like his right-hand person. We got invited to the governor’s mansion for the staff Christmas dinner, I guess you’d say it was something like that. I got to go meet him and he had that amazing politician’s ability to look you in the eye the entire time and say, “Hey Brian, thanks for coming” like he knew me. I had a name tag on but somehow didn’t look at my name tag but knew my name. I think it’s probably a requirement of being a politician. I was impressed. I think that was December and I think he ran for president the next year. It was a small world in Austin in those days for sure. 

Olivia St. Clair Long: It was. It felt like a small town. It was only about a half a million people at the time and it was different. The boathouse, which was corrugated metal and looked like a shed was down there right next to the trails where everybody used to run. It’s a common cross-training thing to have rowers running. Everybody had a bunch of stories about the Secret Service when he was running for president. They would block stuff off and all we’re trying to do is run. It was fun to complain about it.

Brian Walters: Yeah, that’s right. It’s down below the Four Seasons I think is where that was. I think it’s much fancier now, if I remember correctly.

Olivia St. Clair Long: I haven’t been in probably about 10 years. I did go down there somewhat recently, but down by the Four Seasons is really where the Congress bridge is. That’s where we would row under it every morning and hear the bats. Which by then had a whole night full of feeding and we were always afraid that one of those bats was going to just let go and fall on one of us when we went underneath it. 

Brian Walters: That sounds like Austin. Well, if you haven’t been in about 10 years you will not recognize it. You’ll be like, where did this downtown of huge buildings come from? 

Olivia St. Clair Long: I left when the Frost Tower went up, to give you an idea.

Brian Walters: You will not recognize it then. You will think you’re in Dallas, Houston, Chicago or something. Well, not quite from Chicago.

Olivia St. Clair Long: Probably not quite Chicago. Not even LA looks like Chicago downtown.

Brian Walters: All right then. Well we’re going to discuss high conflict divorces and understanding them. We’re lawyers, so let’s do definitions. How would you define a high conflict divorce and what are some characteristics of it?

Olivia St. Clair Long: Sure thing. There’s a practical definition and then there’s the definition that’s more like relational. I think a practical definition of a high conflict divorce is one that cannot be solved by a combination of mediating, negotiating, and maybe just a little bit of boundary defining litigation. If you can bounce somebody back off of their desired difficult behavior with a little bit of boundary defining litigation, then get them into a negotiating room and get it done, that is sometimes an unpleasant divorce. But I wouldn’t call that a high conflict divorce, although the relationship may have high conflict dynamics in it.

Brian Walters: Exactly. That makes sense.

Olivia St. Clair Long: To me, a high conflict divorce is one that’s more relationally defined in which folks have a pervasive inability to agree on basic facts. So we always kind of joke that these two parents can’t agree that the sky is blue. It’s stuff like that and that’s the nice ones. The nice ones are the ones where for some reason these two people have just an incredibly different view of the world and the facts. And importantly, nothing can move them from that, including the best interest of their children.

Brian Walters: I think that’s a good definition. If I had to put a number on it, I’m going to guess these are somewhere between 5% and 10% of the divorces at least are high conflict at some point or some significant point depending on how you define it. Just to give folks a concept of what that’s like.

Olivia St. Clair Long: I think if you give it a little bit of a broader definition in which you do have to have some of that boundary defining litigation, I think that that will get you up to about 15% or 20% but not further than that. Everyone who calls me says that theirs is high conflict, all but about 10%.

Brian Walters: I agree and it’s not as bad as most people think it’s going to be. Then the ones that are way on the end of the scale, those are something else. How does a high conflict divorce impact a family, particularly children, from your experience?

Olivia St. Clair Long: Well, my experience is not only mine, but my mother has done special master reunification therapy, co-parenting therapist work in the California court system since I was a child. What I’ve seen in working for her and her business and what I see on my own is the relational dynamics of a high conflict divorce are generally already present in the family system prior to the divorce. They are not good when the family’s together and they’re not good when the family’s apart. The family system remains even if it has a divorce in it. People are the parents of these kids one way or another. It doesn’t matter if they’re divorced or not. They remain parents for all of their lives. Even if their child dies, they’re still parents. The relational aspects that are frequent in high conflict include coercive control dynamics.

Sometimes people have undiagnosed personality disorders or diagnosed ones. Sometimes people have undiagnosed mental illnesses or diagnosed ones and they infrequently treat them or insufficiently treat them. The conflict in divorce is one of the things that’s bad for kids. Then the continuing conflict in divorce is also bad for kids. The leaning on a court to make decisions for a family, thereby abdicating your role as a parent is bad for kids. The second abdication that happens, usually when a kid’s between the age of 10 and 14 is abdicating your role as a parent. It’s making it about the kid’s decision whether or not to go with the other parent or whether they like the other parent. Essentially parentifying the child and creating the need for the child to choose sides.

Brian Walters: That sounds exactly right. I was preparing for a hearing I have on Tuesday in San Antonio and that sounds really familiar. It’s definitely a high conflict case. We’ve been using the term high conflict divorces, but of course these could be custody battles. Either people that are not married or post-divorce modifications. Certainly there’s some strategies and ways that we can try to manage these cases so that they’re not as bad as they could be. They’re never going to be great. Do you have some ideas and some thoughts about what we could do to try to get these types of cases either under control or not let them spread to be just all encompassing?

Olivia St. Clair Long: Your best case scenario, if you have a high conflict family system that you’re working with as an attorney in a divorce or in a post decree situation, which is what we in Illinois call it, if you have a modification of parenting time or child support after the judgment is entered. If you have opposing counsel on the other side, you don’t even need to like them. But if you just trust them, even if you don’t like them but they are someone who isn’t going to lie, cheat or steal their way through this thing, that really helps because sometimes that doesn’t happen. Sometimes folks who are high conflict have high conflict counsel, which makes things worse. Your child advocate, we call them guardians ad litem in Illinois, their minor’s counsel in California, that person can be a very stabilizing force. Often in these cases they can also be the opposite. 

So your best case scenario is when you have opposing counsel who you can trust and a child advocate who you can trust, and everybody who’s on the lawyer side of everything has somewhat of a similar idea about the dynamics that are occurring. Even if they all agree the dynamics are bad, it’s better than the alternative where you have counsel for what we consider the high conflict person. If I have opposing counsel, I would consider the other side perhaps the high conflict person. And if they don’t believe there’s any type of problem. Although that’s pretty uncommon, they usually believe there’s a problem. They just usually believe they’re the victim of that problem.

Brian Walters: Right. That’s correct.

Olivia St. Clair Long: They don’t usually tell you, “It’s fine, everything’s fine.” They usually don’t tell you that. In any case, the other thing I find is really a good way to do things is first you have to be non-reactive. Especially if you don’t have opposing counsel you trust. If you have opposing counsel who goes just riding into the night every time their high conflict client wants them to, you’re going to have a choice whether to react to that or not. The more non-reactive you can be with that as counsel the better it is. You just don’t feed the desire for conflict. The other thing I think that is good is if you have someone who consistently causes problems trying to create boundaries about the litigation. Litigation created boundaries about further litigation can sometimes help. That may be in an order, for example you can say only upon posting bond can this person bring a motion about this in the next two years. Now it has to get real bad before a judge will let you do that, but sometimes it does and they’ll let you do it.

Brian Walters: I’ve used that tactic before as well, that sounds correct. All these strategies are sort of issues too because if you try not to reply or respond every time the other side makes a big deal out of nothing or something that’s minor, then your own client may think my lawyer’s not fighting for me or something like that. You have to really manage your own client carefully, otherwise they might decide to go out and get an equally high conflict attorney instead of you and make the situation worse for everybody.

Olivia St. Clair Long: Oh, I totally agree. Actually, I heard from a prospective client of mine recently, that they said their ex is pro se. Their ex who’s a very high conflict person and who’s been the respondent in several orders of protection, not just from his ex-wife. A person who has a difficult time navigating the world in a way that is not full of conflict. That guy is pro se. My prospective client said, “Well, my previous lawyer burned through my entire retainer by answering that guy’s email.”

Brian Walters: Yeah, exactly. It doesn’t cost the other side anything to write a long email. I would normally just say, okay, that’s nice and not reply. Just use them in court.

Olivia St. Clair Long: Well, you can make a rule. You can make a rule in Outlook that will reply to that one email address in the same exact polite, non-committal way every time it comes to you if you want to.

Brian Walters: Exactly, that’s very true. We’ve kind of gotten into the next section I had out here, which was just dealing with emotions. In particular with your client’s emotions and communicating with them. And not only them but mostly them in high conflict situations. I think we’ve started to talk about some of those things about clear communication with your clients and other people about exactly what’s going to happen. How this is going to occur using clear languageI like to use what I call English and we lawyers have been taught to write in this kind of strange legalistic stuff. Every time one of my lawyers starts a sentence with, “Please find attached.” Who else do you talk to in your life like that? That’s just the really basic stuff, but I think there’s some other things you can do. Your clients are very emotional and understandably. They’re going through the worst time in their life probably up to this point, maybe ever. Any thoughts about how to deal with those emotions and communication in high conflict situations?

Olivia St. Clair Long: Yeah, certainly. So first of all, you have to have a team. Your client has to have a team around them. That team should include a therapist. Because bottom line, and I say this to my clients frequently, I say, “So I’m your advocate. Your advocate and the things your advocate tells you are oftentimes geared towards satisfying your priorities and they’re oftentimes what you want to hear. That’s not therapy, at all. I don’t have the skills to conduct therapy, nor do I have the desire to do so. I am a litigator. And so what that means is you need a therapist. Also, it’s cheaper. Copays are much cheaper than litigation, way cheaper. So even if you thought I was 10 times better than your therapist, I am more than 10 times as expensive for the hour. If your copay is 20 bucks, I charge more than 200 an hour.”

That’s the first thing we discuss.”You have to have a team wherein you are discussing.” Now every now and then you do get that client with a therapist who starts telling them what they ought to do in court. That’s its own thing. We got to deal with that down the road. You don’t tell me how to do my job, I don’t tell you how to do yours, but they need a therapist. They need a therapist, that’s number one. Number two, as you can probably tell from the way I talk, one of my core values is authenticity and that is a polite way of saying the way that I speak. The way that I speak is straightforward. I tell folks, “Look, when you experience trauma, your brain runs in different patterns than folks who have not recently experienced trauma. You’re going to recount to me the same thing many times because you’re re-experiencing it through PTSD as though you are experiencing it again right now and that’s the third or fourth time I hear it. I’m not going to experience it as you are. You’re going to experience it as though it’s really currently happening right now. So the level of elevated emotions that you’re experiencing are not going to be what I’m experiencing and that’s going to happen in court too. I want you to make sure you understand this is not people not believing you. This is people hearing in a dispassionate and unfortunately skeptical manner what we always have to hear.” Because everybody comes in and says their ex-wife is crazy and everybody comes in and says that their husband is abusive, and we have to figure out who’s actually telling the truth even though many people are telling the truth as they see it, but they have a distorted view.

Brian Walters: Very true. I did a podcast last week with Bill Eddy who’s known for the BIFF Method, if you’ve heard of that.

Olivia St. Clair Long: Oh, I recommend this all the time. I saw him speak at the AFCC conference about seven years ago and I’ve been consistently recommending his stuff ever since.

Brian Walters: He was wonderful, just a really intelligent, nice guy, completely honest and straightforward. I really enjoyed him. He actually kind of put in words this BIFF method. I guess after nearly 30 years of practice I kind of stumbled upon it after 30 years of trial and error. It stands for brief, informative, friendly, and firm ways to communicate in these high conflict situations. You just gave a great example, which is that this pro se guy would write these long emails to the other lawyer. And this lady’s lawyer in the last case and it sounds like he decided to write just as long as a reply. That’s problem number one because that’s not brief. Informative that means facts. Not my emotions and rehashing an argument you had 10 years ago or something like that. Friendly, I mean you don’t have to like the person to be cheerful and friendly. In fact, I always write emails as if a judge is going to be reading them, if I’m writing to opposing counsel or the other side, if the state bar is going to read it, if I’m writing to my client. Which is a good thing to do. It’s sort of like having the angel sitting on your shoulder sort of thing. It’s sort of the same concept. Just keep it brief, informative, friendly, and firm soo there’s no wiggle room. You don’t invite argument or negotiation from the other side and I think that’s a great way to simplify a very complex topic of dealing with those things.

Olivia St. Clair Long: I totally agree and I frequently not only refer folks to Bill Eddy’s site so that they can learn from the High Conflict Institute and those resources, but I also work with them to see why their response is not that way. One common feature of traumatized folks in my situation is they want to go through every single allegation that someone makes about them and explain why that’s not correct. And I just say, “Well, this is all a line of nonsense, so don’t respond to it. Just talk about your priorities.” One of the hardest things I find that folks have is when they’re in such a high conflict situation, they don’t remember what they want. All they think about is what the other guy will let them do, what the other guy said about what they want, why the other thing that we want to do won’t happen. Frequently what I have to do is train them to remember what is it that you want to do here?

Brian Walters: That’s a good point. I’ve had cases where I’ve had to sit back and think and just by knowing my own client or knowing the other side it matters whose idea this was and to do something completely neutral. Let’s just say I have a favorite mediator in town that I want to use. I realize sometimes if I’m the one who demands we use that mediator to the other side, the other side’s going to say, “Who thought that up? It’s Brian. Well, then I don’t want to do that.” They will say, “They can’t be fair.” That’s the kind of situation where I might call up the other lawyer and say, “Look, I want to use so-and-so,” and they say, “Yeah, that’s a great idea.” Then I say, “Well, why don’t you propose it? If I propose it’s not going to happen.”

Olivia St. Clair Long: Oh, for sure. I tell this to folks who are in low conflict situations, but they only want to use one lawyer in a situation where they have it mediated. In Illinois we don’t allow mediators to write a court order. They can write you a memorandum of understanding, but they cannot do lawyer work. Lawyer work would be writing the divorce paper. Anything that’s associated with representing one person rather than the other one.

Brian Walters: That sounds smart to me.

Olivia St. Clair Long: They don’t allow that at all. There’s a very hard line and folks call and they say, “What do you mean you can’t mediate and then write the papers?” I describe it and I can send them the 1988 opinion or whatever. It’s been the law for a long time. Then they say, “Okay, well what about this? What about we go to mediation? The mediator writes a memorandum of understanding and then you write the marital settlement agreement.” I said, “Great, but let me tell you what’s going to happen. I’m going to write it down and because people don’t trust lawyers, your guy who doesn’t have a lawyer is going to say, that’s not what the memorandum of understanding said. She’s doing something sneaky to snooker me about what’s actually in this court order ’cause I don’t recognize the words that the mediator used exactly in this marital settlement agreement that Olivia wrote.”

I always have to say, “It might be easier and cheaper for y’all if you just went ahead and both got lawyers, then the lawyers can tell each of you, you’re not imagining anything, it’s fine. It’s the same language. This is just how we say it. Move on.”

Brian Walters: I agree with you. We’ve had a bunch of listener questions on this topic, so we’ll chop through them fairly quickly. I like to keep these podcasts at a decently short amount so people don’t get tired of them. I’ll actually combine the first two down into one, which is about mediation. Mediation to fine terms, is an assisted negotiation. I’d say you’re there typically with your lawyer and there on the other side, these days it’s mostly on Zoom is kind of in the other room whether Zoom or in person and then there’s a mediator who’s frequently a retired judge but not always, who goes back and forth and tries to find an agreement. It’s successful in non-high conflict cases, probably 90 plus percent of the time ultimately. Very different success rate in a high conflict situation, but what are expectations for mediation and how can both sides feel that they’re fair in a high conflict case from what you’ve seen?

Olivia St. Clair Long: Sure thing. Just real quick in defining those terms, in Illinois  a lot of times it’s not a retired judge. Frequently it’s a litigator who doesn’t want to litigate anymore, who will be a mediator, although sometimes it’s a therapist and you as a lawyer have to decide whether having a therapist mediate is a good idea. One of the things I tell my clients is, “You don’t have to like the guy, you don’t have to trust the guy. All you have to know is mediation is future focused, solutions oriented and non-binding. The job of mediation is to go in there and not talk about why we are where we’re here, not talk about who did what to whom. The job of mediation is to talk about whether we can come to any agreements to make your litigation cheaper. That’s the goal.” Once people start agreeing on something, sometimes they can agree on everything.

Brian Walters: I don’t want to confuse our listeners. I think in Texas the mediator has to be an attorney. I believe it used to not be that way, but I think they tightened up the rules several years ago. So just in case anybody has a thought of bringing in a therapist for mediation. 

Olivia St. Clair Long: The Illinois rules about who can be a mediator are very, very lax compared to most other jurisdictions. That’s partially because we have such strong rules about what mediators cannot do, such as write any court documents.

Brian Walters: Well that makes sense. They can hear, although I agree with you. That’s not a great idea, but I’ve seen it happen sometimes.

Olivia St. Clair Long: In a high conflict situation when I’m still talking mediation, what I’ll tell people is a couple things. Number one in my county, they will make you go to mediation about parenting issues before they appoint a guardian ad litem to be your minor’s counsel anyway. You can just go to Cook County mediation and check the box in that free mediation that they offer, which means you’re going to go there, your ex is going to say what you don’t like, you’re going to refuse and we’re all going to move on, that could be. The second thing is in a high conflict situation we can do what you’ve described, which is attorney assisted mediation. Occasionally I send my clients without attorneys to mediation if I really trust the mediator because then they can just be parents talking about their kids and sometimes they can do that.

In high conflict, I do not do that because I don’t trust the process at all without me there. I do shuttling, like you’re talking about where the mediator goes back and forth between the two groups. I always tell my clients who go into that is, “Let’s say we have 10 points of contention, 10 disagreements here. My goal is to get out of here with three of these things resolved and that’s going to save you money down the road.” My experience is if they get anything resolved, they usually can get resolved about half if not all of the things. It’s the ones who can’t agree that the sky is blue, who can’t agree on anything.

Brian Walters: That’s exactly right. Once you start agreeing on some of the things you start having some progress toward it. Another question is how do children cope and deal with stress and turmoil of a high conflict case? Not well.

Olivia St. Clair Long: I mean about as well as their parents, not well. It’s a bad situation.

Brian Walters: It’s often the saddest part and I think it’s different. It has a lot to do with their ages. If they are babies they may never know what happened, but they’ll be facing the knock on effects of it the rest of their childhood. The later teenagers, the 16 and 17 year olds, my guess is they kind of zone out of it in most cases. It’s the ones that are maybe between 8 and 14 years old or so that I think it’s the hardest for. They’re not able to really stand up for themselves and now they’re going through this. It’s got to be very difficult.

Olivia St. Clair Long: Ages 8 to 14 is definitely the worst. I feel that the ones from 16 to 18 years old oftentimes have had to make a choice. If they choose one parent or the other parent or themselves at that point where they’re either just walking from school to home as late as possible, being in as many activities as possible, going to their room to sleep and then leaving for school as early as possible the next day. Some of them completely dissociate from the family as the safety measure because they’ve been in it their whole lives. This didn’t just start happening and so it’s very bad. It’s difficult. The worst is the ones where folks are waiting. Many states have an age at which technically a child may weigh in as to their own preferences about where they want to go. The worst is when the parents are just waiting for that age to tick over. Frequently it’s like 14. It’s often pretty young. Illinois does not have one. 

Brian Walters: It’s 12.

Olivia St. Clair Long: It’s 12 in Texas. We have a very strong bias towards appointing minor’s counsel in Illinois. Minor’s counsel exists to keep people from putting a child on the stand and asking them what they want. We really filter that child’s opinion through an adult attorney. If you want to get it, the child can talk to the judge in chambers. The child can talk to their counsel, which is the guardian ad litem whose job is to advocate for their best interest, but we don’t like it in Illinois. People depending on their kid saying what they want to do, it puts a kid in the middle too much.

Brian Walters: Yeah, I totally get it and that’s a whole other podcast. The law has been changed a number of times here because I think everybody wants the same thing, to keep kids out in the middle of this, but you also want them to have some agency. I’ll go to the last question just so we can wrap up here in a moment. What resources or support systems are available for individuals struggling with emotional distress during these times? I mean, we’ve talked about this a bit. Ideally they’d get a good counselor or a therapist. I think that’s helpful and there’s other support groups. I think your friends and family are very helpful. I don’t recommend alcohol or other substances as a support system, although it’s a common choice.

Olivia St. Clair Long: Bill Eddy’s stuff. Bill Eddy’s stuff is great.

Brian Walters: Yeah, you’re right.

Olivia St. Clair Long: It really helps people feel that they’re not crazy. The fact that there’s an entire thing called the High Conflict Institute, dealing with people who communicate with you like this and so many examples of high conflict communication. A lot of people that I send over there come back and say, “I had no idea other people’s exes talk to them like this.” And it’s like, “Oh yeah, they absolutely do.”

Brian Walters: It’s unfortunate. All right, well that’s all we have time for today. I can’t thank Olivia enough for taking the time to join us. We’ll have her and her firm’s information listed in our podcast descriptions so anyone can reach out to her directly. And thanks again for coming on the show.

Olivia St. Clair Long: Oh, my pleasure. Such a great time talking to you. Thank you so much.

Brian Walters: You bet.

For information about the topics covered in today’s episode and more, you can visit our website at waltersgilbreath.com. Thanks for tuning into today’s episode of For Better, Worse, or Divorce, where we host new episodes every first and third Wednesday. Do you have a topic you want discussed or a question for our hosts? Email us at podcast@waltersgilbreath.com. Thanks for listening. Until next time.