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Journal Issue: Children and Divorce Volume 4 Number 1 Spring/Summer 1994

High-Conflict Divorce
Janet R. Johnston

Conflict Resolution Procedures and Programs

Mediation

Mediation here is defined as the use of a neutral third party in a confidential setting to help disputing parents clearly define issues, generate options, order priorities, and then negotiate and bargain differences and alternatives. In this method of dispute resolution, the assumption is that the mediator can contain and deflect the emotional conflicts of the divorcing couple and help them to become rational, focused, and goal oriented. In general, mediation of disputes about the custody and care of children after divorce has been widely advocated as the forum of choice because it empowers parents to make their own decisions, avoids unnecessary state interference in family affairs, and increases satisfaction and compliance with the agreements made. Most states now have some provision for mediation in custody disputes either by statute, court rule, or judicial referral.

Formal outcome studies of mediation and court experiences indicate that rates of success in reaching agreement range between 40% and 70%.37-40 It is important to note, however, that the "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 who have severe psychopathology or personality disorders.15-17 It is often argued that mediation is inappropriate for many dysfunctional families: where couples are chronically litigious, where there is domestic violence, where there are allegations of child abuse and molestation, and when one or both parents are alleged to have serious psychological difficulties.41-43 Furthermore, it is difficult for parents to arrive at some consensus when they have highly divergent perceptions of their children's needs and a pervasive distrust of each other's capacity to provide a secure environment. In sum, high-conflict divorcing families have often been identified by their failure to make effective use of mediation methods that rely upon a rational decision-making process.

Evaluation and Recommendations

When attorney negotiations and mediation are ineffective, the courts generally rely upon the expert testimony of mental health professionals to help in the time-consuming task of fact finding and to offer opinions as to how disputes over the custody and care of children should be resolved according to the current legal standard, which is "the best interests of the child." It is generally believed that mental health evaluators are most useful if they serve as impartial experts appointed by the court, or by stipulation of both parties, rather than as an expert retained by one party, who pits his or her professional opinions against that of the expert retained by the other party.4 Evaluations can be conducted within services that are a part of the court system, or by private practice professionals and community agencies outside the court. They can involve a narrow focus on a particular issue (for example, which school the child should attend) or entail a complete family evaluation (for example, psychological testing of all parties, school and home visits, substance abuse assessments, child abuse and molestation investigations).

Studies of the outcome of the evaluation process indicate that the final court order is in accord with the recommendation in about 85% of cases. In actuality, in about 70% to 90% of the cases, after hearing the recommendations, the parties reach a negotiated agreement which is then entered as a consent judgment.4,7,44 Although evaluations appear to be very effective in reaching an initial agreement, they often bring little relief for those high-conflict couples who harbor great distrust and hostility and have difficulty in cooperating and coparenting their children on a daily basis. A two-year follow-up study by Ash and Guyer of 267 families showed that families who had undergone custody evaluations had a rate of relitigation that was two and one-half times the rate for families who had settled by themselves (19% compared with 7%).4 Over approximately an eight-year follow-up period, a recent study by Hauser and Straus of 700 families confirmed this difference. Among families who had custody evaluations, 71% relitigated compared with 41% of the divorcing population in general.45

Visitation Enforcement Programs

Throughout the United States, a variety of court-related services have been established to deal with ongoing coparental disputes over visitation and child care in highly conflictual divorces.46 Typically, they involve one or more of the following: parent education (usually in groups); assessment and mediation of the visitation dispute; drafting more specific, enforceable court orders; and monitoring visitation by letter or telephone. Increasingly, these services are seen as having a probation-like function, and in some cases they are specifically used as a diversion program in lieu of prosecution for contempt of court orders. In some jurisdictions, particularly litigious families are assigned a "case manager" (for example, a judge or court counselor) who is responsible for coordinating the numerous court actions with the many professionals and others involved in the family dispute. The effectiveness of some of these programs in ensuring the child's conflict-free access to the noncustodial parent is currently being evaluated. Of particular interest is whether improved access leads to increased compliance with child support orders.46

Therapeutic Remedies

It is evident that misplaced and escalating personal and spousal conflicts of divorcing couples, whether emanating from long-term difficulties or from separation-engendered conflict, result in resistance to mediation, questionable negotiation strategies, unrealistic custody and access demands in repeated litigation, and ongoing inability to cooperate on behalf of the children. From a therapeutic viewpoint, a more appropriate intervention requires gaining some understanding of why these parents are locked into chronic disputes. Based on such understanding, therapists can devise strategic, focused therapeutic interventions aimed at the impasse, which will help these parents to make decisions more rationally. Moreover, based upon an understanding of the developmental needs of the individual child, therapists can help parents focus on meeting the needs of their children, separate from their own psychological agendas. This approach has generally been referred to as "therapeutic mediation" and has been most highly developed as a method called "impasse-directed mediation" by Johnston and Campbell.11,17,47

Typically, this dispute resolution method involves both parents and their children in a relatively brief, confidential intervention (15 to 25 hours), which can be adapted either to individual high-conflict families or to groups of such families. The strategy is two-pronged: On one hand, parents are helped to develop some awareness or insight into their psychological impasse (or, there is an intervention with the extended family and significant others, including professionals, which aims to avoid the impasse for those parents who are too disturbed to benefit from direct counseling). On the other hand, parents are educated as to the effects of their conflict on their children and counseled about how to protect their children from the spousal disputes. Subsequently, parents are helped to negotiate a coparenting plan and are provided with some assistance in implementing or modifying their arrangements in scheduled, or intermittent, follow-up sessions. A two- to three-year follow-up of two studies of high-conflict families (n = 80 and n = 60) who received this treatment indicated that two-thirds were able to keep or renegotiate their own agreements regarding custody and access and, consequently, to stay out of court. The group method was found to be 40% more cost-effective than the individual method.11,48

Coparenting Arbitration

This is a relatively new approach, which has been developed for those high-conflict families who need continual structure and help with their parenting and coparenting after divorce over a long period of time. Essentially, it involves a mental health specialist (variously called a court master, custody commissioner, coparenting counselor, guardian ad litem) who is appointed by the court or by stipulation of the parties. This person is then available to the family on an ongoing or "as needed" basis to help with decisions about the children. Depending upon the specific contract with the family, any or all of the following methods may be used: counseling, mediation, recommendation, and arbitration. This kind of intervention can be useful in a variety of cases: those that involve chronic litigation and enmeshed family conflicts; where there are ongoing allegations of abuse (physical or sexual) or there is concern about domestic violence; where there is intermittent mental illness of a parent that needs monitoring; when a child has special needs (for example, physical or mental disability) that require close coordination between parents; or, simply, when children are very young (infants) and the parenting plan must be reworked over time in response to the changing needs occasioned by their rapid development. To date, no known studies have evaluated the effectiveness of these kinds of approaches.

Supervised visitation programs comprise a rapidly growing new social service that has been developed in direct response to intractable divorce disputes. Currently, there are more than 70 such programs nationwide, brought together by a fledgling organization called the Supervised Visitation Network.49 Largely staffed by trained volunteers or counseling interns and funded variously by local, state, or charitable grants and by advocacy groups (for example, domestic violence agencies), these programs provide a protected setting for visitation to occur between children and their noncustodial parents.50 This supervision can take a variety of forms, and its extensiveness can vary over time. In the most extreme cases, the supervision may be part of a therapeutic intervention into the parent-child relationship and is undertaken by a trained counselor.

Where the children are at high risk (because of a parent's psychological disturbance, substance abuse problems, history of emotional or physical abuse, molestation, serious domestic violence, or child abduction), visitation may occur only under the continual surveillance of a neutral third person in a closed setting. In situations of less gravity, supervision may be performed in an open setting (for example, at a park, or in the noncustodial parent's home) by family members or friends. Where there is no direct threat to the child but there is a possibility of verbal or physical abuse between parents, the supervision may be limited to the time of exchange of the child at a safe, neutral place. There have been no formal evaluations of these programs to date.