Family Justice Uganda Best Practices
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Process

Mediation techniques
Process for families in conflict to reach understanding
Mediation
Adjudication (decision-making)
Intake and diagnosis
Mediation techniques

The mediator should be outcome-focused

He or she steers the process; through posing solution-focused questions, he or she encourages the clients to look ahead to their desired future situation and how they can achieve this outcome. It revolves around the outcome that the clients want to achieve. Solution-focused mediators will ask “What would you prefer instead of the conflict?”, defined in positive, realistic and concrete terms.

What practitioners say

Be aware of different mediation providers. Many formal and informal justice providers, such as police and cultural leaders offer mediation services. Some of them are not trained mediators. There are specialized and trained mediators available, to whom can be referred to.

Be aware of different mediation types.  The main types of mediation are transformative, facilitative, and evaluative.

  • Evaluative mediation is the style of mediation where the mediator exerts the most control throughout the mediation, and is the most vocal about the positions and offers of the parties.
  • In facilitative mediation, the mediator will control the procedure of the mediation, but the parties control the outcome.
  • Transformative mediation seeks to transform the conflict by empowering the parties to agree. The transformative mediator is only in the room to call attention to the needs, interests, values and points of view of the parties.

Be aware of the costs of mediation. When parties decide to mediate, the parties need to pay. In government-initiated mediation, the parties do not directly have to pay. Parties do not have to pay the police for reporting and offered mediation.

Conduct gender and power analyses. The dynamics in families will need to be identified. Power imbalance refers to decision-making and access to resources within a family. Who provides income? Who takes care of the children? Be careful, bringing up the topic of power balance can escalate the conflict. Moderate the words, use a different term than balance (for example: position of the parties, or personal standing of the parties). Economic status does not always defines power. Rather discuss negotiation ability

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Resources and Methodology

  • First literature search: most plausible interventions
  • PICO question
  • Sample Title
  • Recommendation

This page focuses on specific meditation techniques that can be applied by mediators, regardless the mediation style. James Wall identified 100 mediation techniques (Druckmann and Wall, p. 1915). We compare two techniques, leaving much room for further research on other mediation techniques.

One technique that can be applied by mediators is formulating questions that seek to get clients to make suggestions about solutions. These questions are referred to as solution-focused questions, which originates from solution-focused brief therapy (Stokoe and Sikveland). The mediator is outcome-focused. The mediator tends to steer the process; through posing solution focused questions, he or she encourages the clients to look ahead to their desired future situation and how they can achieve this outcome. It revolves around the outcome that the clients want to achieve (Bannink, p. 176). Solution-focused mediators will ask “What would you prefer instead of the conflict?”, defined in positive, realistic and concrete terms (Bannink, p. 177).

Another technique for mediators is to formulate problem-focused questions. Problem-focused questions are focused on the history of the conflict (Bannink, p. 175-176). According to the problem-focused model the mediator first needs to explore and analyze the problem. Clients describe the problem and then negotiate an agreement that satisfies the needs of all involved. Mediators facilitate negotiation and are focussed on the process rather than on outcomes

For mediators, is asking solution-focused questions more effective than problem-focused questions for the well-being of people in neighbour conflicts?
The databases used are: HeinOnline, Westlaw, Wiley Online Library, JSTOR, Taylor & Francis, ResearchGate, SSRN. For this PICO question, keywords used in the search strategy are: questions, questioning, mediation, solution-focused, problem-focused, techniques, brief therapy, outcome, process. Assessment and grading of evidence

Problem-focused questions Solution-focused questions Solution-focused conversations have a positive effect in less time and satisfy the client’s need for autonomy more than problem-focused conversations.

The solution-focused model has proved to be applicable in all situations where there is the possibility of a conversation between client and professional (Bannink, p. 174).

Applying solution-focused questions results in increased self-efficacy and other positive effects.

According to a randomized study comparing solution-focused and problem-focused questions in the field of coaching], the solution-focused approach significantly increased positive affect, decreased negative affect and increased self-efficacy. Solution-focused questions generated significantly more action steps to help people to reach their goals (Grant, p. 88).

The solution-focused approach ensures a continuous evaluation of the mediation process.

By asking scaling questions throughout the mediation process and by asking at the beginning of each conversation “What is better?”, evaluation of mediation is taking place continuously (Bannink, p. 180). [This could enhance the quality of mediation and perhaps quality of solutions].

Undesirable outcomes Problem-focused questions Solution-focused questions Problem-focused questions can slow down the process of finding a solution.

If the problem or conflict and its possible causes are studied, a vicious circle may be created with ever-increasing problems. This atmosphere becomes loaded with problems, bringing with it the danger of losing sight of the solution (Bannink, p. 175).

Applying problem-focused questions can result in a negative atmosphere.

Conversations about the clients’ positions and a familiarization with the history of the conflict are both deemed not only unnecessary but even undesired, due to their negative influence on the atmosphere during the conversation and the unnecessary prolongation of the mediation (Bannink, p. 176). Applying solution-focused questions may result in solutions that are not owned by the parties in conflict.

Clients want mediators to provide solutions and not leave it for them to ‘sort out differences’. The challenge here can be found in formulations and solution-focused, (or rather solution-proposing) questions. Solutions are the work of mediation, but they are not necessarily the work of clients (Stokoe and Sikveland). [In order for mediators to avoid proposing solutions to their clients, they should be careful in phrasing solution-focused questions].

Balance of outcomes Asking solution-focused questions by a mediator positively affects people’s wellbeing. Mediators should be careful in formulating these questions.

Problem-focused questions on the other hand are not associated with increasement of well-being. In fact, research suggests that applying problem-focused questions may result in a slower resolution process and a negative atmosphere between parties.

The desirable outcomes of solution-focused questions outweigh those of problem-solving questions. Therefore, applying solution-focused questions is preferred.

Recommendation Taking into account the balance of outcomes, the effect on neighbours’ well-being, and the quality and consistency of the evidence, we make the following recommendation: For neighbours in conflict, asking solution-focused questions by the mediator is more effective than asking problem-focused questions, for their well-being.

Process for families in conflict to reach understanding

Apply the problem-solving approach

For a practitioner, it can be difficult to encourage families to work together and find solutions. Family conflicts often lead to tense and emotional situations. But there are effective methods to reach agreements.

The problem-solving approach focuses on finding solutions for the parties’ underlying needs and objectives. The first step for the parties and their helpers is to assess these needs and objectives. Then, the most appropriate interventions are identified, followed by negotiation. Remaining issues are solved by mediation, and if necessary, by adjudication. Compliance and effectiveness of the agreed upon solutions are monitored.

International research shows that taking the problem-solving approach contributes to reaching fair solutions

..

 

What practitioners say

Consistent with literature research:

Work towards building agreements based on shared understandings. All family members and their helpers should feel a shared responsibility to focus on finding a solution together.

Listen to needs of the other person. Parties should try to listen to and understand the other person. They should ask questions if there is unclarity about what the other person needs. When responding, parties should try to contribute to a solution and not just focus on the problem.

Identify the needs of each family member. What does each family member need in order to be able to move on?

Actively listen to what is being said. As a party, be an attentive and active listener who seeks to have a good understanding. Ask follow up questions. As practitioner, ensure both parties are actively listening to each other’s positions.

Reframe stories into needs. Let family members share what they want to share, but summarize and reframe the stories into needs. Blame about the past can be transformed into needs for the future.

Remember that you are not alone. Parties can try to ask for help from family members, friends, neighbours, clan members, Local Council Court, religious leaders etc. when they cannot reach agreements.

Involve neutral helpers. Family members should all feel confident that their helpers in the process are impartial and supporting fair solutions. As practitioner, give equal time and attention to each family member.

Take your time. It is important that all family members are given the time and space to share their underlying needs. Invest time in communicating. Summarize needs and acknowledge them before moving on.

Evaluate agreements. Families should ask each other about how they each feel about arrangements and make adjustments where necessary. All family members should be supportive of agreements.

Involve other providers/experts when needed. As a practitioner, assess the situation and your capacity and expertise. Engage other service providers or experts who can complement your services and help support the process.

Other suggested practices:

Consider the context of the conflict. Are there existing (clan) structures that can be used? Is there a need for a gender-specific helper? Are there any local norms that need to be considered?

Ensure there is privacy and confidentiality for all. Family members should feel safe in their privacy and confidentiality during the process.

Include all the affected family members. All family members, including children, could play a role in solving the problem as it affects them all.

Involve the community if helpful. Involve close family/community members who understand the situation and can help to solve the problem.

Encourage timely interventions. Ensure that interventions begin at an early stage in the conflict. Do not wait for the conflict to escalate

Resources and Methodology

  • Most plausible interventions
  • PICO question
  • Assessment and grading of evidence
  • Recommendation
The common approach to resolving post-separation conflict is adversarial in nature (Menkel-Meadow 1999, p. 764-765). Needs of the parties are reframed in claims. The parties confront each other and use defenses and counterclaims. Between the parties, there is a debate about the validity of evidence and requirements of the law. The process concludes a judgment or settlement. The parties in conflict are presumed to focus on maximizing gains (Menkel- Meadow 1984, p. 764-765). The problem-solving approach rather focuses on agreeing and finding solutions to the parties’ underlying needs and objectives (Menkel-Meadow 1999, p. 794 & Nolan-Haley, p. 246). The approach includes the joint search for solutions by reaching agreements and a decision in accordance with objective criteria if no agreement can be reached. Problem-solving courts are characterized by active judicial involvement, the explicit use of judicial authority to motivate individuals to accept needed services [such as mediation and adjudication] and to monitor their compliance and progress (Babb and Moran, p. 1060). The problem-solving approach includes the following elements:
  • An assessment of the needs and objectives of both parties;
  • An identification of the most appropriate interventions for the parties;
  • Mediation;
  • Arbitration, adjudication or another form of decision-making where mediation is not successful;
  • Monitoring compliance and progress
For people separating, is taking a problem-solving approach more effective than an adversarial approach for their wellbeing?
The main sources of evidence used for this particular subject are:
  • Carrie Menkel-Meadow, Toward Another View of Legal Negotiation: The Structure of Problem Solving (1984)
  • Carrie Menkel-Meadow The Lawyer as Problem Solver and Third-Party Neutral: Creativity and Nonpartisanship in Lawyering (1999)
  • Jacqueline M. Nolan-Haley, Lawyers, Non-Lawyers and Mediation: Rethinking the Professional Monopoly from a Problem-Solving Perspective (2002)
  • Jane C. Murphy, Revitalizing the Adversary System in Family Law (2010)
  • Linda D. Elrod, Reforming the System to Protect Children in High Conflict Custody Cases (2001) ∙ Robert E. Emery et al., Child Custody Mediation and Litigation: Custody, Contact, and Coparenting 12 Years After Initial Dispute Resolution (2001)
  • Peter Salem, The Emergence of Triage in Family Court Services: The Beginning of the End for Mandatory Mediation? (2009)
  • Barbara A. Babb and Judith D. Moran, Substance Abuse, Families and Unified Family Courts: the Creation of a Caring Justice System (1999)
Some findings used for this PICO question are based on empirical studies. However, most of the evidence is derived from expert opinions. This classifies the strength of evidence as low, according to the HiiL Methodology: Assessment of Evidence and Recommendations
Desirable outcomes A problem-solving approach with a simple inventory of needs, interests, wants and goals of all parties will help develop (fair) solutions (Menkel-Meadow 1999, p. 797). The problem-solving approach moves away from a positional articulation of problems to an interest-based articulation of problems. This approach opens up greater possibilities for developing broadened options and solutions that directly respond more to the parties’ underlying needs (Nolan-Haley, p. 249). A distinction in low, medium or high conflict cases should be made, particularly in regard to custody cases. This way, appropriate time tracks can be created for different cases depending on complexity, need for services, and other factors (Elrod, p. 522). ‘Low conflict’ couples can avoid adversarial procedures. In high conflict cases, couples should have access to mediation and arbitration [or another form of decision-making]. During this process, the parties attempt mediation. If they cannot reach an agreement, then a decision can be made [by a neutral third party] on their behalf (Elrod, p. 522). This way, fast solutions can be found to problematic matters where mediation is not effective. In all cases, parenting plans should be monitored by a neutral third party, such as a therapist or mediator (Elrod, p. 533). These parenting plans should take into account the developmental needs of children (Elrod, p. 529). Undesirable outcomes A monitoring system of a final parenting plan is expensive and time-consuming (Elrod, p. 529). Problem-solving skills require an ability to identify and analyse underlying needs, expand resources, generate options, and help clients arrive at solutions that are truly responsive to their needs (Nolan-Haley, p. 249). Taking the problem-solving approach requires investment and training. The adversarial system may exacerbate negative behaviours of parents who possess the financial resources for extended litigation and who believe the court will eventually prove them right (Elrod, p. 511). According to social science research, children’s well-being following parental breakup depends on their parents’ (conflict) behaviour during and after the separation process. An adversarial approach creates more conflict (Elrod, p. 500), resulting in negative effects on children’s wellbeing. Furthermore, in the context of custody issues, the adversarial system has proven to be poorly equipped to handle the complexities of interpersonal relations. It drives parents to find fault rather than cooperate (Elrod, p. 501). Accordingly, research shows that the adversarial approach is ill-suited to resolve disputes involving children (C. Murphy, p. 894). Adversarial procedures in separation cases have been criticised for being expensive, time-consuming and divisive (Emery, p. 323). The adversarial system cuts all parties off from useful information such as facts, needs, interests, preferences and values. This can limit access to the crucial information that motivates people to resolve disputes (Menkel-Meadow 1999, p. 789). Balance of outcomes In determining whether taking a problem-solving approach is better than an adversarial approach for the well-being of parents and children during a separation process, the desirable and undesirable outcomes of both interventions must be considered. Evidence suggests that taking the problem-solving approach helps to develop fair solutions, and opens greater possibilities to establish the parties’ underlying needs. On the other hand, investment and training might be needed. Taking the adversarial approach might lead to more conflict behaviour and subsequently to negative effects on children’s well-being. Accordingly, taking the problem-solving approach is recommended. Recommendation Taking into account the strength of evidence and the balance towards the desirable outcomes of the problem-solving approach, the following recommendation can be made: For people separating, the problem-solving approach is better than the adversarial approach for their well-being

Mediation

Mediate if the parties cannot agree themselves.

From the intake and diagnosis it becomes clear whether mediation is possible. A prerequisite is that both parties must be willing to meet together in one room.

During mediation two parties meet together with an impartial third party (a mediator). Together the parties identify, discuss and make agreements. The mediator provides support, but does not make decisions for them.

International research points out that mediation process and outcome are perceived to be fairer compared to litigation

What practitioners say

Consistent with literature research:

How to get parties to mediate

Caucusing. As mediator, have separate talks with each party first. Explore their needs, with active listening and make them feel comfortable with the process.

Before starting mediation

Send invitations to both parties. Invitation letters should be given to both sides, clearly stating the goals, expectations and general overview of the mediation process. Since usually one of the parties brings the justice problem, there should be a clear message to invite the other party to come to the mediation.

Find a suitable mediator. The mediator should be impartial and promote a problem-solving approach. Both parties should feel comfortable with them. Factors such as age and gender should be considered if it affects the outcome of the process. Mediators should have sufficient training and experience, also in counseling.

Find a suitable location. Make sure the chosen venue is a welcoming and in a neutral setting that makes both sides feel comfortable.

Ensure accessibility. Both parties should be able to conduct the mediation in their own language and time, at an accessible location.

Ensure confidentiality. The mediator should ensure confidentiality of mediation.

During mediation

Explain the process. The mediator should take the time to clearly explain how the mediation will be conducted and what to expect.

Comfort. The mediator should make the parties feel comfortable with the mediator. The parties should trust the mediator.

Respectful communication. Ensure there is mutual respect between the parties and towards the mediator. Both parties should always speak calmly, not raising voices or making accusations.

Promote active listening. The mediator should ensure that both parties are listening to the other’s views. ∙ Focus on needs/interests. Bring the focus of the conversation towards identifying needs, not blaming others.

Give it time and space. The mediator should ensure that both parties are able to present their own needs and views at their own pace. Do not leave anything unsaid.

After mediation

Let the parties own the decision. Mediators should not impose a decision. The family members should be in full agreement.

Formalize agreement. An agreement should be clearly written and signed by both parties. Both parties should understand that this is a binding agreement and that there are certain consequences attached to that.

Other suggested practices

Make the parties feel welcome. As mediator, politely welcome both parties and make them feel at ease. The mediator should provide a “homely” environment.

Always look for win-win situations. Work towards agreements that make all parties happy.

Involvement of children. The views and needs of children should be taken into consideration. Sensitive topics, such as bedroom issues between the couple should be handled away from the presence of children

Resources and Methodology

  • Most plausible interventions
  • PICO question
  • Assessment and grading of evidence
  • Recommendation

Mediation is a commonly used intervention to resolve family disputes (Emery, p. 472 and Shaw, p. 447). Typically, the parties meet together with an impartial third party in order to identify, discuss and resolve their disputes (Emery, p. 472). The third party merely facilitates the process and does not make a binding decision for the disputants; unlike in a litigation process. In essence, the disputants negotiate their own agreement.

There is evidence available regarding user satisfaction with mediation and litigation processes and outcomes, children’s wellbeing and other factors (such as costs and time benefits).

Mediation is only considered an option for disputants who are willing to meet together. Mediation is most effective if there is a possibility to receive quick decisions from a third party

For people divorcing, is mediation more effective than litigation for their well-being?
The main sources of evidence used for this particular subject are:
  • Lori Anne Shaw, Divorce Mediation Outcome Research: A Meta-Analysis (2006)
  • Robert Emery, Divorce Mediation (1986)
  • Linda D. Elrod, Reforming the System to Protect Children in High Conflict Custody Cases (2001)
  • Joan B. Kelly, Family Mediation Research: Is There Empirical Support for the Field? (An Update) (2014)
The article by Shaw is a meta-analysis of various empirical separation mediation and litigation outcome studies. These studies deal with process satisfaction, outcome satisfaction, emotional satisfaction and understanding of children’s needs. Emery focuses on the court and consumer satisfaction with mediation, based on several empirical studies. Kelly’s article reviews multiple custody mediation studies, studies of comprehensive separation mediation projects and studies of child protection mediation. The biggest source used for the evidence is the meta-analysis study, which falls within the highest category of evidence. The other sources rely on multiple empirical studies. The strength of evidence is graded as ‘high’ according to the HiiL Methodology: Assessment of Evidence and Recommendations.
Desirable outcomes Generally, people are more satisfied with the mediation process compared to the litigation process and perceive mediation to be fairer (Shaw, p. 448 and Emery, p. 474). Mediation helps people to understand the point of view of their ex-spouse. The mediation process is perceived to be less biased, and more beneficial to the spousal relationship (Shaw, p. 450 and Emery, p. 474). It provides people with an opportunity to air their grievances and to understand underlying issues (Shaw, p. 449). In terms of fairness of the outcomes, mediation agreements (for example, spousal support and property agreements) are perceived to be fairer than litigation agreements (Shaw, p. 449). For example, mediation empowers both parties to decide themselves the level of fairness within their own separation agreement, which results in a more satisfying outcome. This increases the chances of compliance with the agreements made, by both parties (Shaw, p. 465). Furthermore, parents consider the custody and visitation plans negotiated in mediation to be more desirable (Shaw, p. 449). It has also been reported that mediation helps both parties to focus on the needs of their children. In the mediation process, parents understand children’s psychological needs and reactions better than in the litigation process (Shaw, p. 448). Parents feel that agreements made in mediation are good for their children (Kelly, p. 4). Mediation participants are generally more emotionally satisfied than litigation participants. Resolving a dispute through mediation increases the long-term welfare of divorcing spouses and it minimises conflict (Shaw, p. 464 and Kelly, p. 5). Undesirable outcomes Parties in mediation may misunderstand the aim of this process. For example, there are instances where one party thinks that the goal of mediation is to save their marriage, while the other party’s view is on finalising the separation (Shaw, p. 449-450). Furthermore, some mediation participants feel rushed and pressured to enter into an agreement (Shaw, p. 450). Although most parents are satisfied with the outcome of mediation, around 15-20% of people are dissatisfied with the outcomes (Kelly, p. 5). There is a notable difference between mothers and fathers. Mothers tend to be less satisfied with the final agreement in mediation than in litigation (Shaw, p. 448). It is worth mentioning that mediation can be inappropriate in high-conflict cases, especially for the female party. One of the parties might get harmed where the imbalance of power is too great, for example in cases of domestic violence (Elrod, p. 528). Mediation is not recommended for parental alienation cases, because of deceptive and manipulative tactics and the lack of mediator’s training for recognizing the undercurrents that occur when one parent’s interferes with the child’s relationship with the other party (Elrod, p. 528). Balance of outcomes In determining whether opting for mediation is better than litigation for the well-being of parents and children during a separation process, the desirable and undesirable outcomes of both interventions must be considered. From the above evidence, the benefits of mediation outweigh those of litigation in most circumstances. Mediation is preferable as it helps parents to better understand the needs of their children. Moreover, the mediation process and outcome is generally perceived to be fairer compared to litigation. Recommendation Taking into account the strength of evidence and the clear balance towards the desirable outcomes of mediation, the following recommendation can be made: For families separating, mediation is better than litigation for their well-being.

Adjudication (decision-making)

A neutral decision-maker can help make decisions where needed

It is possible that the parties cannot reach agreement on all matters after negotiation and mediation. In that case, they need a neutral third party to get there. A problem-solving judge attempts to understand and address the underlying problem. The judge facilitates and creates the best environment for the parties to decide on agreements.

Such therapeutic approach to adjudication ensures a more comprehensive solution tailored to the legal, personal, emotional and social needs of the family members.

What practitioners say

Consistent with literature research:

Ensure neutrality. The decision-maker should be a neutral third party.

Explain the process. The decision-maker should take the time to clearly explain how the decision-making process works.

Communicate respectfully. Parties should ensure there is mutual respect towards each other and the decision-maker. Both parties should always speak calmly, not raising voices or making accusations.

Focus on needs/interests. Bring the focus of the decision towards the needs, not blaming others.

Formalize agreements. An agreement should be clearly written and signed by both parties. Both parties should understand that this is a binding agreement and that there are certain consequences attached to that

Resources and Methodology

  • Most plausible interventions
  • PICO question
  • Assessment and grading of evidence
  • Recommendation
According to the available literature, there is a distinction between two approaches to adjudication in cases of separation:
  • An adversarial (or traditional) approach in a family context (where the judge only focuses on the parties and their legal dispute)
  • A therapeutic approach in a family context, such as unified family courts (where the judge focuses on the family as a social system), characterized by a problem-solving judge

The adversarial approach is formal and only takes place within court. The main aim of taking an adversarial approach is truth-finding. It is a monopoly approach (instead of multidisciplinary) and its basic premises are post-conflict solutions, conflict and dispute resolution (Freiberg, p. 3). Taking an adversarial approach generally results in more claims of the parties (Miller and Sarat, p. 542) compared to a non-adversarial approach.

The goal of the therapeutic approach is to maximize the positive effects of legal interventions on the social, emotional and psychological functioning of individual families. The problem-solving judge is a critical actor in this endeavor. Rather than solving discrete legal issues [such as in the adversarial approach], the problem-solving judge attempts to understand and address the underlying problem and emotional issues and helps participants to effectively deal with the problem (Boldt and Singer, p. 91 and 95-96). The problem-solving judge embraces collaborative and interdisciplinary approaches. He motivates individuals to accept needed services (Boldt and Singer, p. 96). All legal actors involved in the therapeutic approach to separation are therapeutic agents, considering the mental health and psychological wellbeing of the people they encounter in the legal setting (Babb and Moran, p. 1063).

In some jurisdictions the primary role of family courts has shifted from [adversarial] adjudication of disputes to therapeutic approach (Lande, p. 431). For example, the unified family court system in the United States.

Unified family court systems are characterized by a holistic approach to family legal problems, an emphasis on problem-solving and alternative dispute resolution and the provision and coordination of a comprehensive range of court-connected family services (Boldt and Singer, p. 91). All matters involving the same family should be handled by one single judge (or judicial team) (Boldt and Singer, p. 96).

For people separating, is a therapeutic approach to adjudication more effective than the adversarial approach to adjudication for their well-being?
The main sources of evidence used for this particular subject are:
  • Richard E. Miller and Austin Sarat, Grievances, Claims and Disputes: assessing the Adversary Culture (1980)
  • Nancy Ver Steegh, Yes, No and Maybe: Informed Decision Making About Divorce Mediation in the Presence of Domestic Violence (2003)
  • Barbara A. Babb and Judith D. Moran, Substance Abuse, Families and Unified Family Courts: the Creation of a Caring Justice System (1999)
  • Jana B. Singer, Dispute Resolution and the Post-divorce Family: Implications of a Paradigm Shift (2009) ∙ Andrew Schepard, Parental Conflict Prevention Programs and the Unified Family Court: A Public Health Perspective (1998)
  • Peter Salem, The Emergence of Triage in Family Court Services: The Beginning of the End For Mandatory Mediation (2009)
  • John Lande, The Revolution in Family Law Dispute Resolution (2012) ∙ Richard Boldt and Jana Singer, Juristocracy in the Trenches: Problem-solving Judges and Therapeutic Jurisprudence in Drug Treatment Courts and Unified Family Courts (2006)
  • Bruce J. Winick, Therapeutic Jurisprudence and Problem Solving Courts (2003)
  • Arie Freiberg, Non-adversarial approaches to criminal justice (2007)
Most sources used for the evidence are expert opinions. Some other sources rely on multiple observational studies. The strength of evidence is categorised as ‘low’ according to the HiiL Methodology: Assessment of Evidence and Recommendations.
Desirable outcomes Based on its study on the unmet legal needs of children and their families, the American Bar Association has recommended the establishment of unified family courts in all jurisdictions. The problem-solving judge addresses the legal and accompanying emotional and social issues challenging each family. Informal court processes [such as mediation] and social service agencies are coordinated to produce a comprehensive resolution tailored to the individual family’s legal, personal, emotional and social needs. The result is a one-judge system that is more efficient and more compassionate towards families in crisis (Babb and Moran, p. 4).   Regarding unified family courts in particular Survey respondents report that their unified family courts (UFC) are organized with broad-based subject matter jurisdiction over virtually all family-related disputes. Survey respondents report favourably on the use of the one-judge, one-family assignment system. Reasons given fall into two broad groupings; efficiency and therapeutic justice [or approach] (Schepard and Bozzomo, p. 336). The Supervisory Judge of the Grafton County Family Division in New Hampshire expressed her belief that one judge per family affords consistency, accountability and ensures adequate and fair time for all concerned parties. An Administrative Office of the Court in North Carolina stated that the UFC model resulted in better case management, which ultimately led to speedy case resolution. The Senior Deputy Court Administrator for Family Court in the 20th District in Florida, stated that one of the greatest indicators of success of a UFC was empowerment of families by therapeutic justice, which enables families to be better off at the end of the process than they were when they entered the system (Schepard and Bozzomo, p. 336-337).   Undesirable outcomes Evidence suggests that the ‘traditional’ adversarial approach to separation drives parents further apart, rather than encouraging them to work together for the benefit of their child (Schepard, p. 95). Separating couples express overwhelming dissatisfaction with the adversarial approach to separation. According to a prominent study, 50% to 70% of litigants thought that the legal system was “impersonal, intimidating and intrusive” (Ver Steegh, p. 163). Another study states that 71% of parents report that the [adversarial] court process escalated the level of conflict and distrust to a further extreme. Separating couples were also dissatisfied because the process was too lengthy, costly, inefficient and not sufficiently tailored to their needs (Ver Steegh, p. 163). Social science evidence suggests that, particularly for children, separation was not a one-time legal event but an ongoing emotional psychological process. Research also shows that the higher the level of parental conflict to which children were exposed, the more negative the effects of family dissolution (Boldt and Singer, p. 93-94). Therefore, it is argued that, in order to serve children’s interests, family courts should abandon the adversarial paradigm in favor of approaches that would help parents manage their conflict and encourage them to develop positive relationships (Boldt and Singer, p. 94).   Regarding unified family courts in particular UFCs promote therapeutic approach for families because they create a single forum to develop a plan for family rehabilitation without the specter of conflicting orders and proceedings. The Colorado court system recently has reported that as a result of a court structure that fragments family disputes between different courts. In a non-unified court system, different family members can end up in different courtrooms (Schepard and Bozzomo, p. 341). Balance of outcomes In determining whether taking a therapeutic approach to adjudication is better than taking the adversarial approach for the well-being of parents and children during a separation process, the desirable and undesirable outcomes of both interventions must be considered. From the above evidence, the benefits of a therapeutic approach outweigh those of an adversarial approach. The adversarial approach to adjudication is not satisfying the needs of people. Despite that the evidence in favour of the therapeutic approach is very low, the undesirable effects and their risks are also low. Recommendation For people separating, taking a therapeutic approach to adjudication is more effective than the adversarial approach to adjudication for their well-being.

Intake and diagnosis

The family first conducts an intake with the practitioner to find out what their needs are

Parties cannot always find solutions themselves.

They need help from a third party. In order to reach agreements, the parties start by conducting an intake. Together with the practitioner they find out what their needs are.

The practitioner provides a diagnosis, based on the intake

Based on the intake outcomes, the parties receive a diagnosis from a trained professional. The practitioner prescribes the most appropriate intervention, for example mediation or adjudication.

According to research, the intake and diagnosis are essential for the parties to receive the best help possible

.

What practitioners say

Consistent with literature research:

Keep records. As practitioner, make sure intakes, diagnoses and further steps are recorded. This will make it easier to ensure agreements are respected and evaluated.

Equal participation. As practitioner, let both parties participate actively in the diagnosis. Both sides should get equal attention and be equally involved in the process.

Keep the end in mind. Both parties should create a list of desired outcomes and then work backwards.

Other suggested practices:

Define clearly what the conflict is about. The parties should clearly define what the grievance is about before the intake process

Resources and Methodology

  • Most plausible interventions
  • Sample Title
  • Assessment and grading of evidence
  • Recommendation

The role of family courts is shifting from one of only adjudicating cases, to planning and managing them (Lande, p. 432). In particular, there has been a movement towards a single judge and [interdisciplinary] professional team that would deal with all issues affecting a particular family, including separation (Lande, p. 432). [Integrated] family courts that actively manage referrals to various services use two alternative systems: the ‘tiered’ and ‘triage’ system (Lande, p. 432).

A tiered system of solving family disputes starts with the least intrusive and least time consuming service and, if the dispute is not resolved, proceeds to the next available process. The next steps are more intrusive and directive than the preceding one. Typically, parents therefore start mediation before adjudication (Salem, p. 371).

In a triage system, the most appropriate services are identified at the beginning (Salem, p. 372). Parents may complete an initial interview, and agency representatives help them to identify the service they believe will best meet the needs of the family (Salem, p. 380). The process may involve screening, development of a plan for family services, appointment of a case manager, development of a parenting plan and periodic court review (Lande, p. 432).

We compare the triage system with the tiered system

For people separating, is a triage system more effective than a tiered system for their well-being?
  • Peter Salem, The Emergence of Triage in Family Court Services: The Beginning of the End For Mandatory Mediation (2009)
  • John Lande, The Revolution in Family Law Dispute Resolution (2012)
  • Nancy Ver Steegh, Family Court Reform and ADR: Shifting Values and Expectations Transform the Divorce Process (2008)

Desirable outcomes

Desirable outcomes Prior to participating in the adversarial litigation process, parents should have the opportunity to participate in mediation, so that they may collaborate with one another and create their own agreement (Salem, p. 274). If mediation does not result in an agreement, other processes remain available (Salem, p. 276).

Some courts in the US have adopted the Differentiated Case management system as a way to more efficiently match families with processes and services. A case goes through triage and a service plan is created for the family. Unlike linear service delivery models [i.e. a tiered system], high-conflict families proceed directly to the programs and services most likely to be successful for them in developing a parenting plan or having parenting arrangements decided for them. Court systems have expanded their role to include activities such as screening, assessment, creation of service plans and referral to community resources (Ver Steegh, p. 668-669). A system that identifies the best match between a family and available service, will provide the most appropriate services, resulting in more efficient use of resources and reducing the burden on families (Salem, p. 381).

Undesirable outcomes If parents are referred to mediation and do not settle, they are often required to participate in additional, and increasingly intrusive processes [such as adjudication] until matters are resolved. When more services are necessary, more money and time is demanded of the parties. This raises frustration, as expressed by members of a focus group in Wisconsin, United States (Salem, p. 382). Some argue that triage will result in some disputing parents missing out on mediation and its important benefits. They say that there is no evidence that one can accurately predict who will succeed in mediation and who won’t, and so suggest that mediation should be mandatory for virtually all parents disputing child custody matters (Salem, p. 372). Balance of outcomes In determining whether a triage approach to separation is better than the tiered approach for the well-being of parents and children during a separation process, the desirable and undesirable outcomes of both interventions must be considered. From the above evidence, the benefits of a triage approach outweigh those of a tiered approach. In particular because the triage system limits frustration of the people compared to the tiered system. Unlike the tiered model, the triage system ensures that the parties make use of the most appropriate intervention. Recommendation Taking into account the strength of evidence and the clear balance towards the desirable outcomes of a triage model, the following recommendation can be made: For people separating, the triage model is better than the tiered model for their well-being.

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