High-conflict Separation and Divorce: Options for Consideration

2004-FCY-1E

5.  INTERVENTIONS IN HIGH-CONFLICT DIVORCES

5.1  Parenting Plans for High-conflict Divorce Situations

Many jurisdictions have created statutory procedures in their equivalents to our Divorce Act, whereby the parents of children in a divorce action agree to a parenting plan in which the duties and obligations of parents for taking care of the children of the relationship are set out and must be followed by the parties. This is covered in more detail in the next section of this paper that examines the law in foreign jurisdictions. However, it is important for our purposes to note that experts in high-conflict divorce see a need for greatly detailed, highly structured parenting plans that minimize the possibility of conflict between the parents. For example, Ehrenberg and Hunter (1996) studied a sample of 32 separated or divorced spouses split equally between those who agreed on a parenting plan for their children and those who disagreed. Compared with parents who disagreed about parenting arrangements, ex-couples who were able to maintain mutually-agreed-upon parenting arrangements were generally less narcissistic, less interpersonally vulnerable, more empathetically inclined, less self-important, less self-oriented and more child-oriented. Arguably, if high-conflict couples are less able to agree on a parenting plan, then additional mechanisms are needed to ensure their compliance with the plan as well as to minimize the extent of their conflict when caring for the children.

Garrity and Baris (1994: 101-120) argued that high-conflict divorces necessarily have complex dynamics. Therefore, issues in high-conflict divorces cannot be resolved through mediation. An arbitrator in some joint-custody situations or a guardian ad litem in other situations may help resolve specific issues. However, in many high-conflict situations, no professional is appointed. Therefore, a parenting coordinator is needed in high-conflict situations, one who is experienced in problem resolution, mediation techniques, communication, the legal aspects of divorce, adult psychology, developmental psychology, and children's adjustment issues that are specific to divorce. The parenting coordinator would have the following responsibilities:

  • Creating a parenting plan to contain or reduce interparental conflict.
  • Ensuring execution of the residence and visitation arrangements specified in the divorce decree or in temporary orders.
  • Monitoring visitation and mediating disputes between parents.
  • Teaching parents communication skills, principles of child development, and children's issues in divorce.
  • Exercising the power to modify visitation as a means of reducing conflict.
  • Ensuring that both parents maintain ongoing relationships with the children.
  • Acting as arbitrator (that is, final decision-maker) on any issue over which the parents reach an impasse (Garrity and Baris, 1994: 120-121).

These authors also produced a table that shows the role of the parenting coordinator for families experiencing three different levels of conflict: minimal/mild, moderate, and moderately severe/severe conflict. In cases of moderately severe/severe conflict, the table describes the role of the parenting coordinator as someone appointed in the divorce decree who adapts communication techniques to the nature of the impasse; modifies visitation to minimize conflict; recommends supervised visitation when necessary for a child's protection; recommends full evaluation of one or both parents when necessary (i.e. regarding alcohol use, substance abuse, severe psychopathology); ensures that the child will have contact with both parents; arranges for visitation and devises a communication plan for parental alienation; and meets as often as necessary, typically once a week (Garrity and Baris, 1994: Table 8-2 at 122).

Garrity and Baris (1994: 146) state:

High-conflict couples most frequently fight about the details of visitation, parenting approaches, and the exchange of information about their children. Modifying the way these elements of parenting are carried out can often minimize the children's exposure to conflict.

Therefore, they offered practical suggestions for minimizing conflict that can be set out in these parenting plans. For example, if both parents can drive, the parents should drive the children to each other's homes rather than have the other parent pick the children up. This way, one parent does not arrive at the door of the other parent; potentially rush the other parent's good-byes to the child. Another strategy is to have a written log, perhaps a small spiral notebook, that travels with the child. It can contain information about preferred or disliked foods, medications, and scheduled activities. This approach can be a useful way of exchanging information between parents who are likely to argue during the children's transitions. If the parents cannot contain their anger during transitions, a neutral drop-off point may become necessary. If conflict remains high, it may be necessary to change the visitation plan, by decreasing the number of transitions and substituting for them a longer visit. Less drastic than a neutral drop-off is the use of some public space, such as a library or museum, to exchange children. Insofar as possible, all exceptions to the basic visitation schedule should be set out in detail in writing. For example, the terms of holiday visits must specify exact times. When parents are unable to celebrate special events peaceably in each other's presence, it is best to hold celebrations, such as birthdays, in both houses. Ordinarily, children should be allowed to telephone each parent from the other parent's home and be assured of the privacy of the calls. The parenting plan should specify that parents will not be able to make up time for missed visits. Garrity and Baris (1994: 146-150, 155-161) provide an example of a draft parenting plan in a high-conflict situation.

The Idaho Protocol for judges to protect children of high-conflict divorce provides that a detailed shared-parenting plan should be included in the divorce decree. As a general rule, the higher the level of conflict between the parents, the more specific the shared-parenting plan should be to protect the children. It continues:

  • F.1. To protect the children, the shared parenting plan in the decree should:
    • F.1.a. Be crafted in a manner which will reduce and/or minimize the opportunity for conflict between parents;
    • F.1.b. Maximize the time the children will spend with both parents, so long as parents (1) know and love the children, (2) are safe guardians of the children, and (3) are willing to parent; and,
    • F.1.c. Take into account the developmental needs of the children. The implications of those needs for the parenting plan differ depending on the level of conflict between the parties.
  • F.2. To protect children, parenting plans may include some or all of the following provisions:
    • F.2.a. Requiring a written log which travels with the children, so that information about meals, medications, activities, etc., may be transmitted with minimal contact between parents and without children carrying messages.
    • F.2.b. Transfers which occur at public places, such as a restaurant, library or day care. If conflict continues to be a problem at transitions, supervised transitions may be appropriate.
    • F.2.c. Separate or alternating attendance at special events for the children.
    • F.2.d. Unrestricted private telephone contact between the children and the non-residential parent.
    • F.2.e. If communication between the parents permits, an opportunity for the non-residential parent to care for the children before arrangements are made with a third party.
    • F.2.f. If parental alienation is established, on-going, post divorce therapy with a neutral health professional may be appropriate.
    • F.2.g. Include a plan for resolving post-decree problems with and changes to the shared parenting plan set forth in the decree, including the use of alternative dispute resolution processes where appropriate.
    • F.2.h. Include, where appropriate, the appointment of a Parenting Coordinator to arbitrate disagreements which arise between the parties in regard to construction or implementation of the shared parenting plan. The parenting coordinator should have authority to make recommendations to modify the parenting plan (Brandt, 1998: 47-48).

Appendix A of this paper is a Parenting Plan Agreement Form found in the Idaho Benchbook on high-conflict divorce (Brandt, 1998: Appendix A at 9-13).

Stewart (2001: 45) suggested that for high-conflict families, the key elements of a parenting plan should be:

  • minimal or no contact between parents;
  • a great amount of detail with little flexibility left to parents;
  • regular routines for children;
  • a primary parent for decision making;
  • access may be limited or supervised;
  • any communication between parents is through use of a "communication book"; and
  • use of neutral places for exchange of children.

This contrasts with the key elements of a parenting plan designed for low conflict families, which would have the possibility of joint and shared decision-making; the possibility of equal time with both parents based on the child's needs; parenting plans that provide guidelines but allow for flexibility for the parents; and a focus on contentious issues, leaving most items for parents to negotiate (Stewart, 2001: 45).

In effect, these authors argue that in cases of high-conflict divorce there is a need for a highly structured parenting plan that would require a parenting coordinator to arbitrate disputes.

5.2  Counselling and Therapeutic Programs for High-conflict families

As Stewart (2001: 34-35) pointed out, the majority of therapeutic interventions reported in the literature are based on small, relatively untested programs. These are clinical initiatives developed from the experience of therapists and counsellors working with divorced and separated families. The small sampling of studies of various clinical programs for separated and divorced parents and children demonstrate several serious design problems. First, small-scale studies make it difficult to draw conclusions about how various models might work with larger interventions. Second, pre-existing family and social factors are usually not analyzed in these studies. Therefore, they do not examine in depth how these families function on a larger scale and how the children of these families function compared to other children in non-divorced families. Third, there is no attempt in these studies to identify the level of conflict in the families and determine how these therapeutic programs help children living through various levels of conflict. Fourth, there is rarely any follow-up of results, and when there is, it is brief. Finally, these small-scale studies do not factor in the effects of other events in a child's life, such as changing schools, moving to another neighbourhood, missing friends and the remarriage of one or both parents. These clinical studies presume that the only factor that effects positive outcome for parents and children is the therapy offered. According to Stewart (2001), what is needed is a comprehensive research study that begins with an inventory of pre-existing emotional and structural factors.

5.3  Divorce Education Programs

Stewart (2001: 38) pointed out that critics of divorce education programs caution against expecting too much in the way of either prevention or solution to divorce hostilities. Many education programs offer information only about the divorce process, options such as litigation and mediation, and perhaps about some of the associated emotional hazards for children. It is argued that the programs are not truly educational because they do not help divorcing parents learn new skills to deal effectively with their children in their new life situation.

There is some limited information about the effectiveness of parenting education programs. Arbuthnot, Poole and Gordon (1996) designed a project in which 3,658 families who had filed for divorce were mailed an educational booklet that spelled out the major effects of divorce and remarriage on children, and provided practical suggestions for eliminating or minimizing harmful effects, especially parental conflict. Although there were no immediate changes in inter-parental conflict, at the one-year follow-up these families showed more positive communication between the parents. Also, the non-residential parent tended to have greater access to the children than did parents in the control group. However, no conflict in these families was identified, nor was there any identification of stressful factors such as relocation or remarriage. Participants were streamed into this project not by applying any criteria, but on the basis of random sampling (Stewart, 2001: 38; Arbuthnot et al., 1996). Arbuthnot and Gordon (1996) also favourably evaluated a mandatory education class attended by 131 parents, which would appear to have lowered the exposure of children to parental conflict (see also Stewart, 2000: 39).

Geasler and Blaisure (1998) reviewed the status of court-connected divorce education programs in the United States. They pointed out the growing recognition that skills training is essential in parent education to promote effective parenting behaviour. They said that research by Arbuthnot and Gordon shows that skill-oriented classes are more likely to lead to parental behaviour change in co-parenting situations than more passive strategies such as books or lecturing. As a result of skill-based education programs, divorcing parents can increase their ability to choose forms of communication that lessen parental conflict, and these effects are retained at the six-month follow-up. Recent research indicated that overall effectiveness of parent education programs may vary according to the level of conflict that parents report; the timing of a parent's attendance at the divorce education program; or the content and teaching strategies used in the program. In a 1996 follow-up to a 1993 study that examined the influence of program attendance on rates of re-litigation six years after the divorce, only individual parents who initially reported high inter-parental conflict, triangulation of children, and low levels of adaptive parenting benefited from the program. They experienced a lower frequency of re-litigation than individuals in a control group in another county. An ongoing evaluation of the "Children in the Middle" programs provided a persuasive argument for teaching strategies as an important variable to consider when assessing the effectiveness of programs. "Children in the Middle" programs emphasize teaching and practicing skills, rather than presenting facts about a number of topics and leaving little opportunity for parental discussion or involvement. The authors concluded that a program focussing narrowly on skills development requires active parental involvement and can provide opportunities for guided co-parenting skill development, that learning and using co-parenting skills has been shown to reduce the possibility of putting children in the middle of parental conflict, but that more research is needed in this area.

The Pre-Contempt/Contemnor's Group Diversionary Program in Los Angeles County has an educational program specifically designed for parents in high conflict. The goals of the program are to provide parents with information about the effects of divorce and parents' conflictual behaviour on children, about the law concerning custody and visitation, about the range of child-sharing plans available and the consequences of not complying with court orders, and about the skills needed to improve their communication and resolve conflicts. Judges who order parents to attend make all referrals to the program. Both parents are required to attend. Children are not included. Group sizes range from 25 to 75 persons. There are six sessions, each with a different theme. In the first session, the rules of conduct are established, and a presentation is made about the historical aspects of custody, the role of the different courts, and the emotional, legal and economic consequences of separation and divorce. The session ends with a video emphasizing the children's need for access to both parents. The second and third sessions focus on the needs of the children, the meaning of their symptoms of distress, their development and parenting-plan options. The remaining sessions provide information about conflict management and effective communication and feature role-playing exercises focusing on negotiation and mediation. Other than consumer satisfaction feedback, this program has not been systematically evaluated (Johnston, n.d.: 27-29).

From January to May 1997, three group cohorts totalling 143 parents attended this Contemnor Program. In the summer of 1997, 45 families who did not attend the program, selected according to the same eligibility criteria, were assigned to a comparison group. At a nine-month follow-up, it was found that both men and women who were in this program, compared to the baseline, were consistently more cooperative, expressed less disagreement with each other, and were more likely to have resolved disputed custody issues with their ex-partner. Also, domestic violence between the parents diminished to a negligible amount. However, there was no evidence that the Contemnor Program reduced litigation rates (Johnston, n.d.: 183-209).

McIsaac and Finn (1999) created a program for high-conflict parents for the Multnomah County Circuit Court in Portland Oregon. Modeled on the Los Angeles County Conciliation Court's Contemnor Program, this program was named "Parents Beyond Conflict." Groups ranged from eight to ten participants, with a total of 26 participants in three groups. They were referred to the program by a judge. The goal of the program was to increase parental empathy toward their children and to help them develop a greater awareness of how their behaviour affected their children. Thirteen of the families were ordered to attend by a judge after many court appearances. Each parent was sent a packet of information about the class, including lesson plans for each of the six lessons. Each lesson was two hours long. The presence of mental illness, alcohol or drug abuse or chronic violence precluded participation in the group. The participants were asked to buy copies of the two texts to be used in the class, Joint Custody with a Jerk and Getting Past No. The first class session established the rules, which included that members of the group would speak respectfully to one another and not speak disparagingly of the other parent. The course emphasized skill building. For example, participants were taught how to deal with problems at a hypothetical level and how to actively listen. All 26 participants found the sessions "very helpful." After two months, 13 of the highly conflicted parents constructively used the concepts taught in the class. However, the long-term benefits of this training still need to be established.

Baker-Jackson and Orlando (1997) explained the "Parents Beyond Conflict" workshop, used as an intervention in the Los Angeles Juvenile Dependency Court to address high-conflict situations referred to dependency court because of child abuse allegations. The workshop provides parents with information about the causes of parental conflict, the destructive impact of the conflict on children, and the developmental needs of the children and their behaviour under stress. Parents are taught techniques for improving their communications with each other. Techniques in managing anger are provided. Problem-solving skills are demonstrated and domestic violence issues are addressed. Role play is used. Between June 1994 and May 1996, 570 people attended the workshop. The responses by parents, attorneys, caretakers and the judiciary were favourable, with judicial officers and attorneys observing immediate changes in the behaviour of the parents toward one another after completing the workshop.

Kramer et al. (1998) compared "Children in the Middle", a skills-based divorce education program, with "Children First in Divorce", a commonly used divorce education program that is not skills-based. They assessed the results of surveys of parents who attended ten classes of these two programs over a two-month period. The authors found that, despite concerns that divorce education programs might increase the frequency and severity of domestic violence, all groups reported decreased violence over time, probably due to a normal reduction in anger post-divorce. Parents with better communication skills experienced a greater decline in domestic violence and experienced less conflict with the other parent, and exposed their children to less conflict. This suggested that teaching communication skills is desirable in divorce education programs.

In Canada, the Clarke Institute of Psychiatry in Toronto operates a "For Kid's Sake" program. As its Web site[2] explains, the program is a novel group approach to helping parents and children manage post-separation conflicts. Some of the areas of conflict dealt with are disputes about the child's time with each parent, differences in parenting styles, schooling and extra-curricular activities of the children, and children's emotional and behavioural development. The program provides separate group experiences for parents and their children over a ten-week period. Parents at first separately attend a series of five group sessions. These sessions have a psycho-educational and therapeutic focus that helps parents better attend to and understand their children's needs and to understand the difficulties in the parental relationship. Emphasis is placed on helping parents take responsibility for their own part in continuing the dispute. Parents then jointly attend another five sessions in order to negotiate a better parenting plan and/or resolve child-related issues (Clarke Institute of Psychiatry, n.d.).

Stewart (2001: 39) pointed out several problems with these kinds of studies. First, as with counselling programs, these studies do not begin from an established baseline that gives a picture of how the children and parents in these families are coping with divorce before any intervention takes place. Second, even in mandatory programs, there is no sense of the parent's pre-intervention cooperation. As a result, even in mandatory programs, it is impossible to determine the parents' level of compliance. Third, there is no attempt to determine levels of conflict between the parents, so it is impossible to measure whether these programs are effective ways to reduce conflict in these families.

5.4  Mediation

In the early 1980s, divorce mediation was introduced as a popular alternative to the more traditional method of resolving issues of custody, access and support, which usually involved the courts. This was seen as a less expensive, less adversarial and more effective method of helping parents resolve their issues (Stewart, 2001: 36). In some American states, such as Florida, mediation is mandatory. Whether or not mediation works effectively in custody disputes is not known conclusively. For example, a study in Toronto compared couples who mediated custody to those who litigated without mediation. Only ten percent of mediated couples returned to the courtroom after two years with problems related to custody or visitation, compared to 26 percent of the couples who chose not to mediate (Vestal, 1999: 488). On the other hand, Pearson and Thoennes (1984) compared outcomes for 668 couples referred to mediation with 212 who used litigation to resolve custody disputes. Of the families who decided to pursue mediation, 60 percent reached some agreement about their issue, although 40 percent of these families reported a breakdown in the mediated agreement within one year. They concluded that further research was necessary on how to work effectively in mediation with high-conflict couples and on whether the oft-stated goal of mediation, joint custody, was actually a sustainable option for many families (Stewart, 2001: 37). Pearson and Thoennes (1986) also summarized the results of a large-scale empirical evaluation of mediation services in three court-based programs. It involved interviews with approximately 600 parents in several divorce dispute categories, one group consisting of parents who had divorced without formally contesting custody or visitation, the other group comprising those parents who disputed parenting or visitation and accepted mediation. The third group was comprised of parents who disputed custody/visitation, but did not try mediation. Mediation was associated with a high degree of user satisfaction. Those who had used it recently rated it most favourably. Over time (i.e. four to five years later), reactions were less uniformly complimentary, although still favourable. The authors caution, however, that although associated with some positive outcomes, mediation is not a panacea, especially with respect to its impact on children's adjustment.

Stewart (2001: 37) argued that these and other studies indicate a need for the pre-selection of mediating families. As with counselling and therapeutic programs, further study is needed to investigate how effective mediation works with families struggling with different levels of conflict. Other emotional and structural factors also need to be identified and considered to get an accurate picture of mediation's potential. Finally, long-term follow-up of these families is necessary. Because of the failure to follow up the studies, it is simply not known how many families who use mediation later return or give up and choose to litigate.

As noted, the usefulness of regular mediation in a high-conflict situation has been doubted. Johnston and Roseby (1997: 230-231) pointed out that mediation, as originally conceived, "is the use of a neutral, professionally trained third party in a confidential setting to help disputing parents clearly define the issues, generate options, order priorities, and then negotiate and bargain differences and alternatives about the custody and care of their children after divorce." They argued that "[m]ore than a decade of experience and a number of outcome evaluations have shown fairly consistent findings: 60 percent to 70 percent of mediated disputes result in agreements; of these, 40 percent to 57 percent are full or complete resolutions... But it is not clear that mediation results in significant long-term benefits, in terms of enhanced parent and family functioning."

The primary indication for a successful outcome of mediation is parents who, with the mediator's help, demonstrate the capacity to contain their emotional distress and focus on the children's issues. However, as Johnston and Roseby (1997: 231) noted, "cases designated as 'failures of mediation' have all the characteristics of high-conflict divorce.... The failures have been described as enmeshed and highly conflicted couples who are ambivalent about their separation and have severe psychopathology or personality disorders." They added: "In sum, high conflict divorcing families have largely been identified by their failure to make effective use of traditional mediation methods that rely upon a rational decision-making process."

Johnston and Roseby argue that, in cases of high conflict between parents, a different kind of mediation-"impasse-directed"-is necessary. It differs from regular mediation in three ways. First, this approach brings together therapy and mediation. The rationale is that, until some of the underlying emotional factors that form the impasse between the parents are dealt with, the parents cannot make rational, child-centred decisions. Second, the assumption is that, because of the impasse, the parents have little ability to protect their children from their own personal or spousal problems. Hence, the goal is to educate and counsel the parents about the children's needs and to use therapy to help the parents manage their family situations. Third, the goal of impasse-directed mediation is not the completion of the access agreement itself. The goals are to develop psychologically sound access plans, to help the family through its divorce transition, and to build a structure to support the parents' and children's growth and development (Johnston and Roseby, 1997: 233-234).

Impasse-directed mediation consists of four phases. In the assessment phase, parents are interviewed separately and observed in a structured setting with the child, in order to compile a detailed history and assessment of the family impasse. In the pre-negotiation counselling phase, each parent, in separate sessions from their ex-partner, is prepared for mediation by the counsellor, who strategically intervenes in the family impasse and attends directly to the child's needs. In the negotiation or conflict-resolution phase, specific disputed issues are resolved and access agreements developed. Lastly, in the implementation phase, the counsellor remains available to each family on an individual basis for emergency consultations in the event of further conflict, and to help the parents interpret, monitor and modify their agreement (Johnston and Roseby, 1997: 233-234).

In terms of effectiveness, Johnston and Roseby (1997: 238-239) discussed two studies of high-conflict families referred from the family courts (with 80 and 60 participants, respectively) who received this treatment. About four fifths reached initial agreement and two thirds were able to keep or renegotiate their own agreements regarding custody and access and stay out of court over a two- to three-year follow-up period. A briefer consultation model has also been developed. A study comparing the longer model with the briefer model found that both were equally effective at a nine-month follow-up in increasing parental cooperation and resolving disputes. They also suggested that brief, strategic intervention in high-conflict disputes might have greatest effectiveness when paired with vigorous court intervention early in the legal process. Impasse-directed mediation is most likely to benefit those who have experienced traumatic or ambivalent separations or those enmeshed in "tribal warfare" within the larger social network. It may not be sufficient for parents with severe personality disorders. Nor is it appropriate when serious allegations of domestic violence must be investigated.

Other authors have probed the difficulties of mediation in high-conflict situations. Mathis (1998) argued that parents with low differentiation (spouses not adequately differentiated from each other in order to function effectively as individuals) are poor candidates for mediation. Such couples seem to dispute for the sake of disputing. Calling these parents "couples from hell," Mathis proposed that mediators should be more active with undifferentiated clients than with other types, should take firm control immediately, and should address the condition of poor differentiation first, before trying to settle anything under dispute. Parkinson (2000) argued that for mediating in high-conflict disputes (not involving physical violence or other forms of abuse) the mediator needs to intervene actively and with more careful structuring of sessions. She suggested various tactics the mediator can use in such mediations. The mediator should actively listen to the spouses, using not just words but body language such as a balanced and stable body position. However, she acknowledges as well that the mediator should not feel under any pressure to struggle on indefinitely. If no progress is being made, mediation should end. Vestal (1999) examined mediation and parental alienation syndrome (PAS), a controversial theory, in which children, through the disparaging of one separated spouse, become preoccupied with viewing one parent as good and the other as bad. The bad parent is hated and verbally maligned, whereas the good parent is loved and idealized. Vestal argued that mediators should be trained in how to detect PAS and how to deal with the dishonesty and deception of the parent who has, in effect, brainwashed the child. A mediation model to address suspected PAS in custody disputes must address four areas of concern: the need for mental health expertise; the assurance that the court will take swift judicial action when necessary to discourage stalling and deception by the aligned parent; the need to balance the power discrepancy felt by the rejected parent; and an ongoing process to monitor cooperation with court orders or agreed-upon steps in the mediation process. However, she also argued that mediation should be bypassed in cases of severe PAS.

Spillane-Grieco (2000) offered a case study of the use of therapy with one family experiencing high conflict, actually a father and a daughter, because the mother refused to participate. Using cognitive behaviour family therapy, communication skills and problem-solving skills were emphasized. For example, family members were taught to be specific, to phrase requests in positive terms, to respond directly to criticism instead of cross-complaining, to talk about the future rather than the past, and to listen without interruption. They were encouraged to think about what an event means to another person, to empathize. She concluded that, from this single case study, cognitive behaviour family therapy appears to be an effective treatment for high-conflict families.

The Group Mediation Model Program of Family Court Services of Alameda County Superior Court, California, is designed specifically for parents and their children who are entrenched in custody and visitation disputes. It has operated since 1989. Mediators with training in group process developed this approach based on the belief that the group dynamic is a fundamental aspect of change. The idea is to allow each group to develop its individual character and then to make use of that dynamic in working with families. It emphasizes placing responsibility on the parents to recognize and find ways to resolve their disputes and overcome their inability to communicate with each other. The goals of the program are to help separated parents understand their children's needs and feelings; to help parents communicate with each other and make more effective joint decisions on behalf of their children; to help parents protect children from inter-parental conflict and from their own negative emotions and behaviour; to reduce excessive and destructive litigation over custody issues; to increase compliance with parenting plans and court orders that provide predictability and security for the children; and to provide peer support for children who are in the middle of their parents' post-separation disputes.

Eight families are seen simultaneously in this group intervention. Generally, families are eligible for the program if they have failed to reach an agreement after a minimum of two attempts in mediation, if the parents are in such disagreement over child rearing that they sabotage or undermine each other's relationship with the children, and if the children show signs of distress in reaction to the parental conflict. Some families are excluded, such as those in which there are allegations of child abuse that require investigation. Group members are required to sign a confidentiality agreement that, for example, guarantees that the information given in the group will not be used in court. The group meets weekly for a total of eight 90-minute sessions. For the first four sessions, co-parents are separated into two concurrently run groups of mixed gender. Also during the first four weeks, children between four and twelve years old meet together in a separate group. For the last four sessions, the parents' groups are combined into one large group and the children's group is disbanded. Bringing the whole family for group counselling sends the message that the problems they are having are everyone's concern and that everyone needs to be part of the solution.

The first session introduces participants to the group process and focusses the parents on the needs of the children. Parents are asked to describe their children in order to show how differentiated or attuned they are to the children. The second and third sessions focus on the parents' impasse and how it affects children. The fourth session prepares the parents for the combined group of the last half of the sessions and helps them clarify the goals they want to accomplish in the remaining sessions. The fifth session is devoted to detailed feedback about the children, with all the parents in one group. The strategy needs to be quite frank about the negative parts of each child's adjustment and behaviour that were brought out in the children's group. In sessions six to eight, the goals are for the co-parents to communicate with one another, solve problems and decide how they are going to do things better in future for the sake of their children. The leaders in these sessions repeatedly ask each pair of parents: "What one thing would you like to change to make things better? What can you do to make things better?"

In 1995 Johnston studied a sample of 39 separating and divorced families at impasse over custody who participated in this group mediation program. Parents and children were assessed at the beginning of the program and again at a nine-month follow-up. Litigation rates, use of family court service and the cost-effectiveness of this group mediation sample were compared to a sample of 49 separating and divorced families at impasse who did not receive the group intervention. Compared to the baseline, at the nine-month follow-up, both men and women who received the group intervention were substantially more cooperative, expressed less disagreement with one another, and were more likely to have resolved custody disputes. Also, domestic violence between parents diminished to a negligible amount. Litigation rates showed significant differences at follow-up between those experiencing the intervention and the comparison group. For example, new client initiated filings for both custody/visitation and financial matters in the intervention group were reduced to one third the rate of those not receiving the intervention, and court hearings on custody/visitation were reduced to about one half the rate of the comparison group. However, the limitations of this study were pointed out, such as the small size of the sample, and deficiencies in the way subjects were selected for the intervention and comparison groups (Johnston, n.d.: 97-123).

In comparing the Alameda group counselling program and the Los Angeles group educational program discussed earlier, men and women in both groups reported, on average, improvement in each measure of conflict and cooperation used in the studies (Johnston, n.d.). They were significantly more cooperative, expressed less disagreement with each other and were more likely to have resolved the custody disputes with their ex-partners. Also, recent domestic violence between parents diminished over this period, from about two fifths to one tenth of families. The data suggested that, at the nine-month follow-up, participants in the Alameda program may have made more substantial gains than those in the Los Angeles program. On average, women in the Alameda program reported less violence and greater inter-parental cooperation, and men in the Alameda program reported greater parental cooperation, than did men and women in the Los Angeles program. Participants of both programs reported similar improvement in their own (and to a lesser extent their ex-partner's) ability to communicate with the other parent, their ability to protect their children from conflict, their understanding of their children's needs, and their understanding of their own role in the dispute. However, Johnston advised caution about these results. Without a control group and with the random assignment of families to the intervention and non-intervention conditions in both programs, there was no way of knowing for sure if the improvements attained at follow-up were due to the passage of time. With regard to litigation rates, the Alameda group showed significant reductions in new filings (about one third) and significant reductions (about one half) in custody and visitation matters at the follow-up versus the comparison group. In contrast, families who attended the Los Angeles educational program showed no reduction in new filings or court hearings (Johnston, n.d.: 243-252).

In concluding this discussion on mediation, Johnston (n.d.: 255) has the final word. She argues that the procedural organization of services to address high-conflict divorce rests on the principle that family courts should provide the least intrusive intervention into the private lives of families to ensure they will be able to care for their children. If families fail to settle through means such as parenting education and mediation, they are referred to progressively more intrusive educational classes, therapeutic interventions and, where all else fails, to co-parenting arbitration and supervised visitation. However, she asks: "Do some families have to fail successively at each level of service before they get the help they really need?" She proposes that future research on high-conflict divorce could explore a range of services. This range of services is set out below:

A Spectrum of Alternative Dispute Resolution Services for Divorcing Families and Proposed Criteria for When to Use Each Type

First Level
Parenting education after separation and divorce:
Workshops, videos, literature, divorce adjustment groups for all parents and children with attention to special needs of never-married parents, ethnic minorities, and parents with infants and young children.
Second Level
Mediation and consultation:
For parents in custody and access disputes, including brief issue-focussed mediation, and consultation and counselling with collaborative attorneys and therapists. Children not usually included. Content and process confidential from court.

Success is likely for parents who, with a mediator's help:

  • have the capacity to contain emotional distress and focus on children's needs;
  • despite anger, can distinguish children's needs apart from their own;
  • have some history of parental cooperation;
  • can acknowledge the value of the other parent to the child;
  • obtain early intervention (in which cases it is likely to be especially effective); and
  • are able to design access schedules and custody arrangements according to their individual needs.

Mediation and consultation are inappropriate for cases involving serious allegations of abuse, molesting, domestic violence, severe mental illness, substance abuse, etc.

Third Level
Specialized education, psychological interventions and assessments:
For parents unable to mediate stable settlements.
Education and skill-building:
Classes to explain laws about custody, domestic violence, contempt, psychological effects on children of conflict and violence, parallel and cooperative parenting; exercises to teach effective communication and problemsolving. Does not deal with specific child or family situations, hence confidentiality is irrelevant to court.

Appropriate for families who:

  • lack knowledge about laws and procedures of family court;
  • are overly dependent on litigation to make parenting decisions; and
  • are deficient in communication and problem-solving skills.

Inappropriate when there are:

  • serious allegations of child neglect and abuse, domestic violence, substance abuse or mental illness; or
  • character disordered parents who tend to use educational information to further strategic advantage in litigation.
Therapeutic or impasse-directed mediation:
Counselling about psychological factors that lock parental disputes and about the child's needs prior to mediating issues. Children included. Content confidential; only status report on progress goes to court.

Appropriate for families when:

  • emotional issues keep intruding and disrupting mediation/negotiation;
  • children show symptoms of distress and parents are unresponsive and preoccupied with their own pain or with the fight;
  • parents are experiencing acute reactions to humiliation and loss inherent in divorce;
  • there are traumatic separations; or
  • there is "tribal warfare" (new partners, extended kin, and professionals involved in dispute).

Inappropriate or insufficient for:

  • serious allegations and substantiated abuse and violence; or
  • serious parental character pathology, substance abuse and mental illness.
Custody evaluation:
Court appoints or parties stipulate child-focussed evaluation, home-school study to investigate allegations. Children and collaterals included. Written report and recommendations to court.

Appropriate for families when there are:

  • serious allegations of abuse, molesting, domestic violence, severe mental illness, substance abuse; and
  • if allegations are substantiated, in which case the court must impose and monitor a protective custody and access plan.

Inappropriate:

  • as a routine response to failed mediation and negotiation (consider a confidential child-focussed assessment instead); and
  • when the facts are not in dispute (consider ongoing parenting and co-parenting help instead).
Fourth Level
Co-parenting counselling and arbitration:
For parents who continue in high conflict despite mediated or court-ordered settlement. Variously called special master, wise person, custody commissioner, med-arb, this professional is appointed by stipulation of the parties or an order of the court to manage ongoing conflict, help co-ordinate parenting, make timely and flexible decisions, and case-manage with other professionals involved. Includes access to children or their therapists. Scope of arbitration authority is defined by stipulation or court order. Usually not confidential from court.

Appropriate:

  • when entrenched custody conflicts and chronic litigation emanate from serious psychopathology, personality disorders and parenting deficits;
  • to monitor potentially abusive situations;
  • to support a parent who has an intermittent mental illness;
  • to make timely decisions for infants and very young children; and
  • to coordinate the care of a child with special needs.

Inappropriate for:

  • a family crisis when problems are acute and temporary;
  • when custody and access arrangements have never been established in the first place; and
  • when there is "tribal warfare", especially when professionals are disputing about the family.
Supervised visitation and monitored exchange:
To provide protected parent-child contact and safe transfer of child by order of the court or stipulation of parties.

Appropriate when there is a high risk to the child or victim parent because of:

  • ongoing high conflict and domestic violence;
  • parental substance abuse;
  • concerns about physical abuse, neglect or molesting of the child;
  • a threat of or actual child abduction;
  • serious mental illness of a parent; and
  • as a temporary measure while investigation is proceeding.

Inappropriate:

  • as a substitute for child assessment/custody evaluation by a mental health professional;
  • as a substitute for therapy for the child or parent-child relationship;
  • to quiet the fears of an accusing parent when allegations are unfounded; and
  • when the child is chronically distressed and refuses parental contact.

Other specialized services needed to help foster parent-child relationships:

  • reconnection/reunification supervision for non-custodial parents who have long been absent or never been involved with their children;
  • parenting and co-parenting assistance in domestic violence families;
  • therapeutic supervision when there has been a major violation of the child's trust in the non-custodial parent; and
  • protocols between court and professionals for the management of parent alienation cases.

The above services in the fourth level need to be closely coordinated with interventions provided by other juvenile and criminal court-related services (such as child protective services and probation services) and with community-based programs (such as mental health counselling, substance abuse monitoring and treatment, batterers treatment programs, and domestic violence victims' advocacy, etc.) (Johnston, n.d.: 257-260).

5.5  The Child's Representative

Many jurisdictions, for example Australia and California, have statutory provisions whereby a court may appoint a lawyer for the child or children. A recent conference report and action plan on high-conflict custody cases recommended that, as a general rule, a child should have a lawyer or representative who is independent of the parents and their lawyers. In some limited circumstances, a representative for the child would not be necessary, perhaps in cases involving very young children when a judge believes the child's interests are being properly considered by the parties. The report/action plan recommended that jurisdictions should define and describe the roles played by different legal representatives of children, so as to distinguish, for example, between a guardian ad litem and the child's lawyer. Jurisdictions should also adopt appointment criteria and performance standards for children's representatives (American Bar Association, 2000: 6-7).

5.6  Conclusion

In cases of high conflict, what community resources should be used to aid in custody disputes? Stewart (2001: 46-47) proposed a division of these resources according to his high/low conflict typology. For the external factors he placed in the high conflict category, families would be referred to the following community resources: mandated services to monitor child safety; counselling and therapy to help with issues of anger and loss; addictions services; and supervised access and exchange programs. Families who fall within the low conflict typology would be referred to mediation services, individual and group support counselling for parents and children, and parent education programs.

While there is some limited evidence that parental education classes and mediation classes may be helpful in high-conflict situations, the evidence is far from conclusive given, for example, the small samples used in the studies. Moreover, the kind of mediation prescribed by experts, such as Johnston, for high-conflict situations is not regular mediation, but a hybrid of therapy and mediation. In addition, mental health professionals who are not well trained or who allow themselves to become drawn into the conflict can become sources of conflict. To avoid this problem, the recent conference report and action plan for high-conflict custody cases proposed that mental health professionals, in adopting a proactive approach to this problem, should ensure:

  • that the legal community and the court are aware of the ethical rules and standards promulgated by their mental health professional organizations relating to child custody evaluations and other custody issues;
  • that the mental health community respects the role boundaries that distinguish evaluator, therapist, parent coordinator, mediator, arbitrator and other professionals involved in separation or divorce cases; and
  • that mental health professionals collaborate with other service providers to consider ways to conserve the family's available resources and to bring about the best outcome for the family and child.

It also proposed methods to improve child custody evaluations and to ensure the confidentiality of treatment given the parents or child (American Bar Association, 2000: 3-5).

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