Should Mediation and Counseling Replace Today’s Family Court? Part I

© 2014 by Bill Eddy

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This is a question which would have been unheard of until very recently. Yet various trends today indicate that it may be time to seriously consider such a question. Part I of this article explains how today’s Family Court clients are significantly different from those ten or twenty years ago, and a large percentage have hidden mental health problems presenting as legal problems. Part II will explain how the adversarial process of litigation escalates the dysfunctional behavior of those with mental health problems, creating larger public health problems, and how these parties confound the adversarial process of decision-making. Part III will propose a paradigm shift for making divorce and separation decisions which may eliminate 80-90% of today’s Family Court cases. 

Today’s Family Court Clients

Most people familiar with Family Courts around the world are aware that the clientele has changed. Until ten or twenty years ago, most divorcing and separating clients came to court seeking legal decisions: How should child support be calculated? How should property be divided? What should parenting plans look like?

Most of the time, clients had lawyers to assist them in researching related laws and arguing why the facts of the case should lead to their preferred legal result. This was important, because many laws and policies had not yet been established under the “no-fault” approach that most states adopted just forty years ago. And most clients accepted the judge’s decisions and proceeded to follow them in their new lives.

Today, the vast majority of people getting divorced (and unmarried parents) find out what those basic laws and policies are and agree to follow them or tinker with them – without ever going to Family Court to have a judge make their decisions for them. They do this in agreements they make on their own, or in mediation, or other settlement procedures with the help of lawyers or other professionals. In the United States, only about 20% of divorcing parties and never-married parents (who need to make legal parenting decisions) actually come to court asking a judge to make the decisions for them. In Sweden, I’ve been told it’s only about 7% of these cases which use the courts.

 Behavioral Disputes

Instead, in today’s Family Courts, the issues are primarily behavioral disputes rather than legal policy disputes. These behavioral issues include: domestic violence, child abuse, substance abuse, alienating behaviors, hiding money, hiding children, not following court orders, challenging court orders, getting enforcement court orders, getting orders requiring job contacts for unemployed parents (who don’t seem to want to work), getting support enforcement orders for support payors (who don’t seem to want to support their children). And then there are false allegations of child abuse, domestic violence, alienating behavior, hiding money and so forth.

Yes, there are laws about these behavioral issues and methods of enforcement of court orders, but the courts are ineffective at controlling behavior of this sort. Family Courts were designed for the fairly-normal behavior and misbehavior of fairly normal people, who sometimes need nudging to follow court orders (such issuing a wage assignment order for child support orders requiring a court hearing). The behavioral issues of today’s Family Court clients involve behaviors that 90% of people wouldnever do (such as battering a spouse, sexually abusing a child, kidnapping a child from the state or lying about these things).

It’s not that Family Court is “broken” (an increasingly popular saying with which I disagree), but rather that Family Court was never designed to deal with the flood of clients with the type of behavioral problems which indicate serious mental health problems underneath.

 Disorders in the Court  

Based on my experience for 12 years as a child and family therapist (Licensed Clinical Social Worker), followed by over 20 years as a family lawyer (Certified Family Law Specialist), I estimate that a majority of the clients in today’s Family Courts have a diagnosable mental health problem: substance abuse, bipolar disorder, major depression, personality disorders. For those involved in high-conflict cases, I believe that at least one party has a personality disorder because the characteristics of such a disorder are extreme interpersonal behavior, which most would consider the behaviors of abusing partners and children, hiding children, alienating children, hiding money, making false allegations and so forth. Many judges, lawyers, counselors and parents now agree with me on this.

It’s also important to realize that in many cases there is just one person with such a mental health disorder and in many other cases both clients have such a disorder. Therefore, it is especially important for decision-makers to understand what is going on to make accurate and protective decisions. The risk is that reasonable parents will be punished (restraining orders, supervised access with their children), while dysfunctional parents will be awarded primary custody and praised for their (hidden) misrepresentations to the court, which often encourages more dysfunctional behavior.

Based on research at one of the New Ways for Families® programs our Institute has developed (which orders parents into short-term counseling before the big decisions are made), over 80% of high-conflict parents ordered into the program have a personality disorder. So this concern is starting to be validated by research. These are not normal families, for whom Family Courts were designed. This trend has been recognized as far back as 1997: 

While performing our duties in all of these roles [as psychotherapists, mediators, custody evaluators], we have found that clients who engage in protracted adversarial processes, whether personal or litigious, show a high percentage of personality disorders. They make up a significant population of the descriptively difficult clients who consume an inordinate amount of time and energy of family lawyers and the family court system.”   

Feinberg, R. and Greene, J.T. The Intractable Client: Guidelines for Working with Personality Disorders in Family Law, Family and Conciliation Courts Review. Vol. 35 No. 3, July 1997. 351-365.

The difference today is that the percentage of ordinary clients in Family Courts have significantly reduced, while the percentage of personality disordered clients has increased and may represent a majority – at least in parenting disputes.

The Hidden Nature of Personality Disorders

People with personality disorders can appear to be quite normal for a short period of time and they can be quite intelligent; but their disorders come out in close relationships, especially at times of stress, such as separation and divorce. Judges can’t tell just by looking at people whether they have a personality disorder or not; just like people dating can’t tell based on how charming, attractive and generous they seem for the first few months or years. It takes a knowledgeable investigation into the underlying history of behavior patterns to determine whether there is a personality disorder pattern involved. Courts are ill-prepared for making such diagnoses and mental health professionals often disagree when it comes to personality disorders, so you can have an expert on each side of such a case in an adversarial setting – if the clients can even afford experts.

Yet even people with personality disorders are heavily influenced by the emotions and behaviors of those around them. If they are in a non-threatening environment, they can behave much more appropriately. Many of them can be somewhat successful parents when they have sufficient structure and encouragement to be emotionally calm. Yet this is not the environment that Family Court provides – it’s quite the opposite. It was designed for resolving legal questions brought to court by highly trained and emotionally confident lawyers, who can turn their legal arguments and adversarial behavior off and on, constrained by professional standards. It was not designed as a way of life for anyone. Yet it becomes that way for many people with mental health problems (including some professionals). Some research suggests that personality disorders are increasing in society, so it should not be a surprise that they are increasing in our courts. (See Eddy, B. 2012. The Future of Family Court: Structure, Skills and Less Stress.)   

 Vulnerable Brains in Family Court

Characteristics of adversarial systems appear to lead to worse behavior for many of those with mental health problems, such as personality disorders. Martin Teicher and other child abuse researchers at Harvard, tell us that some people with personality disorders have a smaller corpus callosum – the “bridge” between the right and left hemisphere of the brain. In practical terms, he suggests that this is why some people shift suddenly from reasonable to intensely angry and back again – between left and right hemisphere responses – even over the space of a few minutes.

This smaller corpus callosum may be caused by repeated child abuse growing up, which triggers too much of the stress hormone cortisol for the corpus callosum, blocking glucose from replenishing its neurons. Thus, neurons in the corpus callosum shrink and some die off. These researchers say that this result is triggered by physical abuse, sexual abuse, neglect and verbal abuse – anything that triggers repeated stress or fear for a child. (Teicher, M. H. (2002). Scars That Won’t Heal: The Neurobiology of Child Abuse. Scientific American, 286 (3), 68-75.)

Prolonged divorce conflict can easily be understood as another source of distress and over-stimulation of cortisol for children – and adults. Therefore, repeated criticism by Family Court judges, lawyers and other professionals may trigger a more-extreme response for many of these clients, which they are unable to calm down – for physiological reasons, not by choice.

Recent research on coaching styles and brain responses for normal people gives us some additional awareness. Two researchers at Case Western Reserve University compared “coaching for compliance” (such as: “How are you doing with your courses? Are you doing all of your homework and readings?) with “compassionatecoaching” (“If everything worked out ideally in your life, what would you be doing in 10 years?”). They found that less stress, more creativity and behavior change were triggered in the brain with the compassionate approach. The compliance approach triggered more fight-or-flight responses, increased heart rate and pulled blood away from the brain. Repeated compassionate conversations led to more positive brain responses, which would suggest that repeated compliance conversations would lead to more negative brain responses.

This may explain what happens with clients who are involved in repeated Family Court hearings – their overall stress level tends to increase and their behavior tends to deteriorate. Not surprisingly, their children’s stress levels also appear to increase and their behavior problems tend to worsen. This may help explain why many clients coming out of a court hearing ask “What happened in there?” of their attorneys, if they have one. This may also help explain why “alienation” (resistance to spending time with a parent for no reason) increases for many children during the court case. 

This coaching research indicates that the ability to engage in creative problem solving is enhanced by compassionate conversations, rather than by compliance conversations – a hallmark of attorney arguments, Family Court orders and judge lectures. “Constructive criticism is still criticism in my theory,” says Richard Boyatzis, one of these brain researchers. (Cultivating Creativity: Brain Scans show the power of compassionate coaching. Think: The Magazine of Case Western Reserve University. Spring/Summer 2014.)  

In other words, the environment matters – the context of decision-making can influence how people think and how they behave. From my experience working with clients with mental health problems in psychiatric hospitals and clinics in the 1980’s, as well as the practice of family law for over 20 years, clients with mental health problems are much more sensitive to their emotional environment. They tend to mirror the emotions of those in front of them, as well as those they observe who have similar emotional experiences to their own.

Thus, when TV, movies, the Internet – or Family Court – show someone else who feels depressed, powerless, angry and so forth, taking an extreme action, it is highly suggestive to them to do the same thing. They have less emotional stability, so they are more susceptible to these emotions of others – in additional to the other brain problems described above. 

Part II will focus on how the adversarial process of litigation escalates the dysfunctional behavior of those with mental health problems, creating larger public health problems and expense, and how these parties confound the adversarial process of decision-making.


Bill Eddy, LCSW, Esq. is a Licensed Clinical Social Worker and Certified Family Law Specialist. He is the co-founder of the High Conflict Institute and the Senior Family Mediator of the National Conflict Resolution Center based in San Diego, CA. He is the author of several books. He is also the developer of the New Ways for Families program, which is being operated in four Family Court systems in the United States and Canada, and the developer of the New Ways for Mediation method of structuring and engaging high-conflict clients in using simple skills during the mediation to make their own decisions out of court.