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

 

© 2014 by Bill Eddy

In Part I of this article, I addressed the changing clientele of today’s family courts around the world. A majority of cases actually going to court appear to involve one or two parties with a mental health problem (generally unrecognized) which drives behavior problems which are presented to the court as legal problems. Today’s family courts are unable to effectively change client behavior (which was not their original purpose), yet a significant amount of court time and community resources are spent on trying to manage the misbehavior of some family court clients.

Part II of this article focuses 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. Part III will propose a paradigm shift for making divorce and separation decisions which may eliminate 80-90% of today’s family court cases.

Defensive Nature of Mental Health Problems

The most common mental health problems include a strong dose of denial and defensiveness: depression, anxiety, personality disorders and substance abuse. Mental health problems can affect an individual’s thinking, emotions and behavior. For example, depression and anxiety are two of the most common such problems affecting over 30% of the general population at some point in their lives. When depressed or anxious, people we are bombarded with negative thoughts about themselves, about the world and their relationships with others. Yet most people come out of such a depression or anxiety within three months – and it’s as if someone changed glasses and now views themselves, their relationships and the world more favorably.

In the 1980’s I provided a lot of “cognitive therapy” to patients with depression and/or anxiety in a psychiatric hospital and an outpatient clinic. I was amazed at the improvement in their lives by learning key techniques to shift their negative thinking into more realistic and positive thinking. (Beck, A. et al, Cognitive Therapy for Depression, 1993) Yet when suffering from these conditions, patients lack the self-awareness to know that their thinking is distorted. Arguing or lecturing or pressured negotiations with them at such a time often increases their negative thoughts and subsequent behavior.

Fighting over children, finances, jobs and houses during such a time can have devastating effects on such people. These effects range from simply giving up rights and substantial parenting time, to inaccurately blaming for bad behavior in court, to defending and denying their own misguided behavior, to committing suicide and taking out those they love at the same time.

Personality disorders are another mental health condition which seriously distorts one’s thinking about self, the world and relationships, yet is often hidden. (Beck, A., et al, Cognitive Therapy for Personality Disorders, 2nd Ed. 2010) Since this has nothing to do with intelligence, financial success and appearance, people often fall in love with those with traits of these disorders and don’t realize it for months or years. Yet in a crisis or close relationship, the patterns of these disorders start to show up, especially extreme thinking, extreme emotions and extreme interpersonal behavior (such as coercive controlling domestic violence, child abuse, child alienation, spreading rumors, serious financial manipulations and so forth).

Such disorders can drive custody battles, future abuse, false allegations, increasing substance abuse, increasing alienation of children against one parent, and worse. Yet such behavior is usually dealt with in a vacuum in family courts, with little or no knowledge of the underlying mental disorder(s) driving this behavior – and little or no knowledge of what treatment interventions and court orders would actually treat the underlying patterns that exist in so many of these cases. Also, because of their tendency to project their own behavior onto others, courts are frequently misled into believing the other person is acting inappropriately in a manner that more accurately fits the accuser than the accused.  

Yet, because of the distortions of these mental health problems (and numerous others, such as substance abuse and other addictions), such people are given a lot of negative feedback when they are suffering from their disorders. With depression and anxiety, such individuals are often told to straighten up, tough it out, get over it, and other platitudes that don’t work at the time, but may work for them later on when these temporary conditions subside. But they can be very defensive during the times when they are depressed and anxious, and often get used to defending themselves from this type of criticism when it occurs.

For those with personality disorders (and some with lesser “traits”), they have usually received a fair amount of negative feedback since early childhood (when these disorders usually begin) and these disorders tend to last a lifetime (except for some cases of motivation for change and strong treatment). Thus, they have adopted a defensive “stance” in life, ready to defend, defend, defend, whenever criticized. For many with these disorders, they have become skilled at attacking others when they are criticized and – like protecting a wound that never heals – they are constantly protecting themselves even when they are not being attacked but receiving any form of criticism – even so-called “constructive criticism.” As explained in Part I of this article, such criticism is still criticism.

The Criticizing Nature of Family Courts

The structure and process of family courts is a “perfect storm” (when 3 storms collide) for those with mental health problems. Court runs on an adversarial structure, which is used to determine who is guilty and who is not (winners and losers). The distorted thinking of those with mental health problems is an adversarial defensive process, in which they see other people as a threat to themselves and themselves as in need of protecting and defending themselves. And legal professionals operate in an adversarial process of criticizing one party and defending the other party.

At first, this adversarial process of court is very attractive to many people with mental health problems, especially those with personality disorders (often “high conflict personalities” – HCPs). The following chart shows why:

 

Characteristics of HCPs

Life-time preoccupation: blaming others

Avoid taking responsibility

All-or-nothing thinking

Always seeking attention and sympathy

Aggressively seeks allies in their cause

Speaks in dramatic, emotional extremes

Focuses intensely on others’ past behavior

Punishes those guilty of “hurting” them

Try to get others to solve their problems

It’s okay to lie if you feel desperate

 

Characteristics of court processes

Purpose is deciding who is to blame; who is “guilty”

The court will hold someone else responsible

Guilty or not guilty are usually the only choices

One can be the center of attention and sympathy

Can bring numerous advocates to court

Can argue or testify in dramatic, emotional extremes

Can hear or give testimony on past behavior of others

Court is the place to impose maximum punishment

Get the court to solve one’s problems

Lying (perjury) is rarely acknowledged or punished

At the start of many cases, people with mental health problems are often quite fearful of court, but many times they find themselves doing surprisingly well, because the court thinks in the same way that they do. They see themselves as victims and faultless, and the other party as totally (extremely) at fault. Since the court process is structured the same way, such people appear to fit in quite well. The only problem is that many of them are the primary cause of problems rather than victims of the other person. And the other person may simply trust that the court will figure things out, when in fact it is an adversarial process of arguing your case, which is something that ordinary people don’t usually do but high conflict people with mental health problems often do.

Over time, the family court process wears down both parties. When one party loses, they start fighting harder – either to defend themselves because of their own cognitive distortions or to defend themselves from decisions based incorrectly on the other party’s cognitive distortions. Approximately half of cases appear to have only one party with a mental health problem and the other party is just trying to cope and protect themselves and the children.

The other half of cases seem to have both parties with a mental health problem. In either case, the adversarial process often increases their negative thinking, emotions and behavior, as this process of attack and defend continues and grows over time, as family law litigation is allowed to continue until all issues are resolved and the children are grown up. Frustration levels go up and the fall-out on the children tends to get worse and worse. Children start taking sides when they see (or believe) that one parent is becoming the “winner” and the other the “loser.”  

Their defensiveness grows, because over time there are more and more negative statements made privately and publically about each party. Lawyers start getting tired of their clients in prolonged cases. Clients start running out of money and get angry at their lawyers. Their lawyers get angry back and tell them that they are high conflict clients (or worse). Clients think about suing their lawyers for malpractice – and they do if their lawyers sue them for fees.

Evaluators, such as psychologists, write reports with feedback to the court about each party’s mental health. There is something in these reports to deeply offend each party, no matter how carefully the psychologist tries to describe their behavior and concerns. As one psychologist said: “A psychological evaluation is like being stripped naked in the town square.” Talk about criticism! Having your own mental health, relationship details and parenting details described in depth, to be viewed by a judge, by the other party and by the other party’s lawyer (if there is one) can be the most intense form of criticism. This often increases defensive behavior, rather than reducing it.

Judges tend to admonish and lecture both parents in family courts, in an effort to be fair and balanced. But for those with mental health issues, they take these “criticisms” very personally and remember being criticized in the public. In management, there is a saying: “Public praise and private criticism.” This is the opposite of what happens in family courts, where criticism is laid out in detail often in front of strangers (waiting for their own cases to be heard) as well as any number of legal professionals.

The Cost to Public Health

For many people with mental health problems, this is too much to take. Many parents and children go to see separate counselors to cope with all of this, or they are ordered into counseling by the court at some point in their cases. Many court orders say they should stay in counseling until the counselors says they are finished, which may be months or years, usually at the party’s expense.

Some go to confront each other after court and have a fight at the house – or someplace more public – during the next visitation exchange and the police are called. Others become much more depressed and may need to be hospitalized. Sometimes the children start acting out at school and require extra attention or a child welfare agency becomes involved. Some parents take the children and leave the state – which then brings the District Attorney’s office into the case and further public expense.

And of course a few snap and kill themselves, sometimes in a murder suicide that includes the other party and the children. It is surprising how many such killings occur within two weeks of a court hearing.

Overall, the costs of community resources (mental health services, police, hospitals, child welfare, in addition to repeated use of the courts), as well as the personal costs to these families – and the affect these escalating problems have on the children – go far beyond the cost of a simple court hearing. The escalation of mental health problems and behavior related to today’s family court cases is spilling out of court and becoming a serious public health problem and public expense.

Confounding the Courts

All of these problems might seem worthwhile, if they were just a minor byproduct of an effective family court process for those with mental health problems. But instead, the nature of these mental health problems themselves renders the court fairly ineffective compared to the purpose for which it was designed: to resolve individual legal disputes between separating and divorcing parties (child support, parenting plans, property division, etc.). Remember, the focus of many (most) of today’s family court hearings and trials are behavior issues, rather than legal issues. You don’t need to go to family court to find out the law. That is available online, from lawyers and mediators, and law libraries. In fact, the majority of people separating and getting divorced today don’t have a lawyer – they do this legal research themselves. The courts and legal research have become very accessible in today’s information world.

Unfortunately, the arguments in today’s family courts are over behavior – as presented and analyzed by each party about the other. This worsens the thinking of people with mental health problems. Since the legal system requires the parties to investigate and present the evidence, it increases and locks in their all-or-nothing thinking for people, as they blame each other and defend themselves. This encourages people to become more invested in their negative thoughts and to become more defensivewhen they are challenged.

Further, the defensive nature of those with mental health problems distorts the legal process of trying to determine the truth of the matter before the court. They lack self-awareness of their thinking distortions and many of those around them become emotionally persuaded they are telling the truth about themselves and the other person. If they are on the witness stand, they can come across as very credible to the court, because they often truly believe their cognitive distortions. Yet they may be totally false – unbeknownst to the person whose perception seems very real to themselves.

During the litigation process, the likelihood of behavior change rapidly diminishes and the likelihood of more extreme behavior increases – either to get the other person’s attention or to get the court’s attention. Longer declarations/affidavits get written. More witnesses get brought to court. More extreme arguments get made, with more intense emotion. More disturbed child behavior occurs, which leads to more court hearings as the parties blame each other for their children’s emotional problems – which may be caused by the ongoing effect of the litigation process on their parents, as much as by anything else.

If the judges were to initiate investigations; if the judges were trained in what mental health patterns they were looking for; if the parties we not allowed to criticize each other; if their hearings and trials weren’t held in public; if the search was really for useful information about their patterns of behavior rather than arguing the meaning of 1-2 incidents out of context; if positive information was also the focus of attention; then the process might be much more productive and less harmful to the parties. But the current litigation process has been in place for hundreds of years and isn’t about to change this radically just for one area of the law.

Conclusion

Unfortunately, today’s family courts are inadvertently contributing to: increasingly negative behavior, distress for families with different types of needs, increasing public health problems, a drain on public resources, and harm to the next generation of children. Other, significantly different, methods need to be considered, funded and implemented.

Part III will focus on some ideas about how to move approximately 75% of today’s family court cases out of family court for more appropriate decision-making, for the reasons described above.

 

Bill Eddy, LCSW, Esq. is a Licensed Clinical Social Worker and Certified Family Law Specialist. He is the President 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, including: The Future of Family Court: Structure, Skills and Less Stress and Managing High Conflict People in Court. 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.