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

 

© 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. Yet 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. 

In this Part III, I propose a paradigm shift for making divorce and separation decisions which may eliminate 80-90% of today’s family court cases. Should mediation and counseling replace today’s family court? The answer is “Yes!” However, while I recommend replacing today’s family court, I do not recommend completely eliminating family courts. 

Instead, I recommend seriously redesigning family court into a Family Transition Center, which provides structure and accountability in a non-adversarial manner to assist families and individuals seeking to change their relationships and/or their behavior, and a role for a non-adversarial family court judge for managing those few families for which it is necessary. This change would not require new buildings or funding, but would re-assign rooms and budgets in today’s family courts and change the tasks of various legal professionals and court staff. 

A Non-Adversarial Family Court?

Mediation and counseling are non-adversarial methods which focus on the future. 

Mediation (and other non-adversarial decision-making methods, such as collaborative divorce) involve making decisions about future parenting, future sharing of some income such as child support, and the future use or division of property. Nothing about these decisions requires an adversarial process. People are used to calculating and paying their taxes without an adversarial process. People are used to making health care and educational decisions without an adversarial process. People leave their jobs and take new jobs on a routine basis in today’s society, without an adversarial process to make job-changing decisions. The shadow of an adversarial process does not need to hang over these decision-making processes for them to be successful. 

Counseling is also a non-adversarial process and the recommended approach for helping people change family-related behavior. While today’s family courts order people to change their behavior or suffer legal consequences, the adversarial process of court ensures that people will be less likely to change behavior. The highly-criticizing nature of court procedures, including documentary evidence, testimony, witnesses, argument and so forth against each party about their past behavior builds more resistance to change than motivation to change. 

As I explained in Part I of this series of articles, research tells us that negative coaching styles decrease openness to change for the average person – increasing stress and “fight or flight” responses; while positive “compassionate” coaching styles – which focus on helping the person move toward their future goals and getting assistance in achieving them – assists in behavior change. The negative, adversarial process of court (with judges lecturing, lawyers arguing and the parties taught to blame each other) discourages behavior change. Yet as I explained in Part II of this series, behavioral problems are the primary issue in today’s family courts. Family courts cannot function in a positive manner which promotes behavior change, because they are adversarial in structure. It doesn’t matter how hard the judge tries to persuade behavior change – the adversarial structure works against them.         

A Family Transition Center

Therefore, I recommend replacing today’s Family Court with a non-adversarial Family Transition Center, where families can receive assistance in making family decisions, such as mediation, and assistance in changing negative family behaviors, such as structured counseling. For those who are unable to manage their own family decisions and problems related to separation, there would still be a Judge who would make decisions for them, but not in an adversarial process.    

This Family Transition Center would have four levels of services – all of them non-adversarial. 

Level 1: Filing Separation Plans  

Filing Separation Plans (for 80% of today’s separating/divorcing families): The Center would have a place for separating families to file their separation plans (marital settlement agreements, etc.) to satisfy the requirements of society (through their state governments) to provide stability in family life. There would be no “Plaintiff” and “Defendant” nor a “Petitioner” and “Respondent.” These Separation Plans or Settlement Agreements would be simple forms with blanks to fill in. There would be Center staff to assist in a non-adversarial manner (drawing from today’s staff busy with court files for hearings), rather than saying I can help one “side” but not the other. 

Lawyers and private mediators could simply mail in the Separation Plans of their clients, much as they do now in many jurisdictions. While such joint filings are allowed in many places, they are currently discouraged by the requirements of an adversarial process. Such simple filings would take care of the approximately 80% of families which don’t presently need a judge to make their decisions. This would not be very different from what happens now, but there would not be the presumption of an adversarial process in the forms or the treatment of the family, or in the requirement to appear in court to have the judge approve the separation plan or marital settlement agreement, as still occurs in some jurisdictions. 

Level 2: Mediation Services

Mediation Services (for the 20% of today’s families who need help making decisions): Half of the families who regularly use family court systems are mostly seeking minor assistance in making their separation plans (marital settlement agreements) and don’t really need a judge. A mediator can help them use legal standards to determine their property division, spousal and/or child support, and parenting plan decisions. In California, there are already Family Court Services which are located in the court buildings and provide mediation services in regard to parenting disputes before a family can appear in court. Most other states have panels of private mediators who serve the same basic function. 

In the Family Transition Centers I envision, there would be low-cost mediation services for all unresolved issues, not just parenting issues, for families with low incomes. Families with medium and higher incomes could continue to use private lawyers and private mediators to settle their cases. I estimate that half of the families which use these court-related mediation services will resolve their full Separation Plans (Marital Settlement Agreements). This is 10% of the divorcing population. 

HOWEVER, some families have at least one person who starts at court requesting restricted parenting for the other parent, who does not agree. This restriction request is a key predictor of a potentially high-conflict dispute. Such cases would not go to Mediation first, but should be diverted upon filing to a structured counseling program (Level 3 below), which would teach them shared decision-making skills, such as our New Ways for Families program. 

ALSO, those families which fail to reach an agreement in their initial mediation session would be diverted to a counseling program (Level 3), to learn decision-making skills, then they would return to mediation for a second try. 

These two groups are the last 10% of separating/divorcing families and are the ones most likely to become “high-conflict” families and use 90% of today’s family court resources. By diverting them into counseling as soon as possible, I believe that a majority will become able to settle their separations or divorces in mediation afterwards. 

Level 3: Counseling Services

Counseling services focused on decision-making skills (for today’s “high-conflict” families): These would be government subsidized, sliding fee scale, short-term and focused on teaching skills for joint decision-making, such as our New Ways for Families method. People could choose to go to a court-based counselor or a private counselor. A short-term structured method would be used, which would be the most efficient and the most consistent way of teaching decision skills in a counseling setting. We have found that our New Ways for Families method has had a lot of success with this type of approach, including a Workbook to structure the skills so that the separating people are learning the same skills. 

Counseling in a non-adversarial, non-defensive process has a great potential to facilitate change of behavior. The behavior problems which dominate today’s family courts need counseling methods. Yet counseling needs to be coordinated with the court, so that people going through counseling are held accountable to change their behavior. For the families that are not able to settle their own cases after this counseling and a second try at mediation, they will go before a non-adversarial judge who reinforces the counseling and may require more future counseling. 

Level 4: A Non-Adversarial Judge

Family court decisions by a non-adversarial judge in a non-adversarial setting (for perhaps 2-3% of separating/divorcing families who fail in mediation AFTER counseling): This is the part that will surprise people the most. All of the protections of today’s family court process can be maintained in a non-adversarial approach. Remember, we are not talking about criminal courts or criminal behavior. Today’s family courts are designed as civil courts to resolve disputes between the parties, and they can have a substantially different structure to accomplish this task. 

I envision this judge operating much as retired judges are operating today, in an office with people seated around a conference table, rather than sitting up much higher above the parties in a large courtroom. While this “superior” positioning may gain the average person’s attention, it has a counter-productive effect on those with personality disorders. Research related to our New Ways for Families programs (to be published next year) indicates that those with narcissistic and histrionic personalities are the high-conflict personalities most attracted to the courtroom process. Remove the drama and we believe that you will remove the “theater performance” aspect for a lot of high-conflict people. On the other hand, courtrooms trigger defensiveness for many people with personality problems, so that they are much less likely to change their behavior after a court hearing in which they were dominated and humiliated. 

In the current adversarial process, each “party” gets to make strong and long statements about the other party’s bad behavior. Rather than motivating behavior change for the other party, it triggers deep defensiveness. Rather than motivating behavior change for the party who is making these statements, it helps them dig into their positions and builds their resistance to change. Remember that today’s family courts are filled with personality problems and other mental health problems. The setting and process of litigation simply makes them behave worse, not better. What the coaching research indicates is that behavior change is more motivated by others making compassionate statements, rather than criticizing statements. A “pep talk” and “constructive criticism” are still criticism which produces resistance to change. 

Therefore, I have concluded that partners who are ending a relationship should not be encouraged or even allowed to make public, criticizing statements about each other. Instead, the non-adversarial judge should be well-trained in mental health problems, including the patterns of behavior involved. Instead of the “parties” making arguments and presenting evidence, the judge would lead the investigation by asking for information about possible patterns of behavior of each person. For example, the judge could ask both partners to describe the patterns of parenting and other behavior. The judge could ask whether there have been any incidents of unmanaged emotions, rigid thinking, suspicious behavior, violence toward the children or the other party, statements made in front of the children and so forth. In this manner, the judge would ask the partners collectively for a Pattern Analysis of both parents, based on known patterns of disordered behavior. (See our PatternViewer computer service as an example of how pattern information can be organized.) 

The judge would still make conclusions about credibility, about the facts of the case and about what should be done in terms of parenting plans, support and property division. There would be a court reporter present and lawyers could object and otherwise participate. But the process would focus on information gathering by the judge about known behavior patterns of the mental disorders that have brought the case before him or her, much like a doctor asks questions of a patient to understand their illness and make a diagnosis. These are not ordinary “disputes” once they have gone through counseling and mediation without success. After all, we have 40 years and volumes of “no fault” legal standards that are easily accessible to guide separating and divorcing couples. To treat these cases as ordinary legal disputes simply makes matters worse when mental health problems are involved. Mental health problems are much more like other health problems than like legal problems – needing accurate diagnosis and treatment, not uninformed guesses and superficial platitudes about behavior. 

A Paradigm Shift

I have no illusions that Family Transition Centers will be adopted during the next five years. I expect my vision will stir up controversy, especially among tradition-oriented legal professionals. But I would predict that something along these lines will be adopted within ten to twenty years. In the meantime, aspects of this paradigm shift are already in motion. I am not the only one talking about moving divorce out of the litigation process. Many judges, collaborative lawyers, mediators and counselors are saying similar things, but mostly within the present basic construct of an adversarial system at the core. The term “alternative dispute resolution” implies that litigation should be the primary dispute resolution system, when a judge making decisions should be the exception.

I also understand that people may worry about domestic violence, child abuse and alienation cases, which seem to need the power of the court to intervene. Nothing I have said above means that a judge can’t make the same court orders a judge can make today. What I am saying is that the process of decision-making will be much more effective if the partners participate in making the decisions to the maximum extent possible. They will behave better. For example, research has shown that mediation is more effective than court at reducing domestic violence after decisions are made. Most people can make reasonable decisions, in a non-adversarial environment, with decision-skills training. And if they can’t make reasonable decisions, then the “alternative” of judge-made decisions should be handled in a more knowledgeable and non-adversarial process than they are today in family cases.

 Conclusion

Today’s family court is mostly dealing with behavior problems, not legal problems. We need to build on our knowledge of what facilitates behavior change and create Family Transition Centers to replace easy access to an adversarial family court. Separating partners should be held accountable for making their own decisions as much as possible. When they are unable to, they should be assisted with affordable mediation and counseling. If they are still unable to make their own reasonable decisions, then judges should make decisions for them, but based on knowledge of mental health problems in a process that is non-adversarial and motivates behavior change. 

Society can little afford the incremental changes being made today within an adversarial family court process. Mental health problems – especially personality disorders – appear to be increasing in society and children are growing up in adversarial households which may contribute to their own development of adult mental health problems. High-conflict divorce is a public health problem that we are inadvertently feeding. If we can envision a comprehensive non-adversarial approach for all families in transition, we may be able to create a better future for us all.

 

 

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; 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; and the co-developer of the PatternViewer method of organizing and presenting patterns of high-conflict behavior.