The Future of Family Court: Pattern Analysis
© 2014 By Bill Eddy, LCSW, Esq. [An excerpt from The Future of Family Court by Bill Eddy] For those who are unable to resolve their disputes by learning relationship conflict skills, the court will need to make their decisions for them. However, in today’s family court, much of the decision-making, especially regarding parenting, is done by focusing on one or two seemingly extreme behaviors or events – without the context of the person’s pattern of behavior. Based on these isolated behaviors or events, long-term parenting decisions are made which may or may not be in the child’s best interest. Family court judges – especially new judges – are often making a best guess, based on the demeanor of the parties and the strength of arguments. Unfortunately, in family matters the emotions surrounding these events, and the dramatic arguments made by the parties and/or their counsel, tend to make it harder to discern the truth, rather than easier. The adversarial process may work well with normal people in litigation, but it does not work well with family court litigants with mental health problems that are being exaggerated or minimized for a legal advantage. People with personality disorders, in particular, can be very convincing and misleading in their courtroom presentation of self. Yet they have recognizable and predictable patterns of behavior that are more obvious than ordinary people, when fully examined. Some of the most responsible parties can be made to appear incompetent in court by someone with a personality disorder or their negative advocate, as many responsible people do not try to hide or shape their frustration, confusion and doubts. This is particularly true of antisocial domestic violence perpetrators, who can appear very charming and reasonable in court, and their victims, who can be made to look very incompetent and emotionally unappealing in court. Determining credibility is usually one of the biggest issues in any legal dispute in court. For example, cross examination is considered the engine of the truth. However, when someone with a personality disorder is involved, there are two major problems with credibility: 1) A personality-disordered person usually believes in their many cognitive distortions (see Managing High Conflict People in Court for more about cognitive distortions). In these cases, trying to assess whether such a person is lying or not totally misses the issue of whether the underlying information is actually true or false. Such a person may be totally honest – and totally wrong. 2) A personality-disordered person often projects onto the other party bad behavior that is more like their own. The passion with which such a person attacks and criticizes the other party can seem compelling. (“The other party must have done something terrible to have upset this person so much.”) Yet this sincerity may come completely from their cognitive distortions as well. Such a person may seem very credible and sympathetic – and totally wrong. These two problems of people with personality disorders confound family courts more and more, since their litigated cases often involve disputes over the basic facts, so that judges are tempted to decide the case based primarily on credibility. Therefore, a new approach to this problem is to have the parties present a pattern analysis of their own behavior and of the other party. This includes showing how often negative behaviors have occurred (just once or on numerous occasions) and what the positive behavior patterns are as well. This assists the court in more truly understanding what is going on for each party, and avoids the preoccupation with one or two dramatic events – which may or may not represent the past pattern of behavior. For more information on issues faced by Family Court and this new proposed approach, read The Future of Family Court: Structure, Skills and Less Stress. BILL EDDY is a lawyer, therapist, and mediator. He is the co-founder and Training Director of the High Conflict Institute, a training and consultation firm that trains professionals to deal with high conflict people and situations. He is the author of several books and methods for handling high conflict personalities and high conflict disputes with the most difficult people.
Misunderstanding Family Systems in Today’s Divorces and Family Court
© 2014 By Bill Eddy, LCSW, Esq. Family systems theory has been around for decades, but there is little discussion of it today. Yet understanding how family systems work can help professionals and parents going through separation and divorce. In this article, I explain some of the basics, some of what happens to family systems in divorce and how to truly help families in divorce. I also point out why the adversarial process of family courts successfully managed family conflicts in the past, but is guaranteed to fail today’s high-conflict family systems (regardless of procedural changes within the adversarial structure) – whereas skillful family mediation and other non-adversarial processes can succeed. Family Systems Theory Family systems theory describes families as operating like the solar system: each member of the family has a “pull” on every other member of the family – like gravity pulls planets towards each other and other forces push them away, so that they stay in balance spinning around each other in a predictable orbit. Family systems have many common characteristics, including the following: They are powerful: Family systems are a powerful source of support. You can take them for granted. Family members will consistently act in predictable ways, so you don’t have to guess each day. You can focus on what your tasks are and respond fairly automatically to each other. In this regard, a family system is like a personality – very predictable, so that you know what you can get from whom, when and where without putting a lot of energy into thinking about it. Family systems have built houses, companies (family businesses are everywhere) and nations (dynasties). For example, most successful Olympic athletes, musicians and actors had strong family support – from a very young age. The family system organized itself around their success. They seek stability: A family system develops standard ways of doing things. The whole family participates in enforcing its code of conduct, values and roles people play in it. Even young children tell each other, their parents and their toys how they should or shouldn’t behave, which helps them learn the rules of the family system and follow them. Family secrets are kept, so that the family system is not thrown off balance. The more dysfunctional the family, the more rigid the roles to help keep it stable, the more extreme behavior and the more secrets to keep it as stable as possible. Everyone is part of the family system – no member is an “island.” They create roles: In every family system, everyone develops a role. One member talks a lot and another may be quiet. One person is highly competent at one skill and another is good at something else. In traditional family systems, especially in rural societies, the roles have been very clear-cut. In modern times, roles are more flexible and may overlap, as family members interact with the larger society. This can cause instability, so that the family may spend more time arguing over roles or members may simply leave the family system and have little or no contact. They are part of larger social systems: Family systems, like “nuclear families” (two parents and their child or children), are part of larger extended families, which are part of communities, which are part of regional cultures, which are part of nations and world social systems. The values, rules and behaviors of these larger social systems strongly influence smaller family social systems. As one changes, so do the others – but not necessarily happily so. They are resistant to change: In times of threat from outside of a family system, the family can be very powerful, because everyone automatically knows how to behave and what their roles are. Regardless of internal squabbles, family systems can be strong in jointly warding off danger – especially threats to the family system. This includes resistance to positive changes. They maintain the status quo at all costs. They don’t let people change their behavior very much. They are always aiming for stability, like a ship at sea trying to balance itself in a storm. Today’s Social Changes Regarding Marriage Since about 1970, there have been dramatic changes in our larger social systems and within families around the world. We are shifting from fairly rigid family structures to quite flexible family structures. Freedom to divorce, gay marriage, multi-racial households, children born to unmarried parents, people living alone and a multitude of other changes are having unpredictable affects on the future of family systems and larger social systems. In terms of the separation and divorce process (we now speak of “separation and divorce” because so many couples no longer get married), the relationship of Family Court to family systems has changed dramatically in the past few decades. Individual over the family: Divorce laws gave social permission for people to get divorced at will, simply due to “irreconcilable differences.” If one person wants a divorce, they will have it. This creates an ease of disruption that impacts the whole family system. Rather than having skills to cope with these significant changes, many families instinctively put all their energy into resisting these changes in order to stabilize the family system – either by engaging in abusive behavior or publically blaming each other in an effort to get the public to force them to behave. Lack of continuity: Families don’t last to raise the children in one household. The average age of children when their parents divorce is around 6 or 7 today. This means that they will be raised in two households longer than they were raised in one household all together. Equal roles: In the past, one family member was the “breadwinner” and the other raised the children. In divorce 20-30 years ago, one family member often left the family system and the remaining parent raised the children. Now, both parents are expected to work and both want to raise the children. Both need new skills for cooperating in ways they never did
Removing 90% of High Conflict cases from Family Court
© 2014 By Bill Eddy, LCSW, Esq. New Ways for Families® in Divorce From my travels giving seminars around the United States, Canada, Australia and other countries, it appears that today’s family courts have hearings in 20% or less of separation and divorce cases. Yet a significant number of these cases are “high-conflict” cases, which keep coming back or involve extreme behavior (or both). These high-conflict cases consume 90% of court time and budgets. My goal – shared by many judges and family law professionals – is to remove 90% of today’s high-conflict hearings from Family Court and have them settled by agreement of the parties. I envision this occurring with two steps: 1. Having all parents with a parenting dispute ordered to take a skills-training program (such as our New Ways for Families® method) before the big decisions can be made in their case. Of course, temporary protective orders, support orders and parenting schedules can be made right away – safety first. 2. Have the skills-training program immediately followed by an out-of-court negotiation process, such as mediation, collaborative divorce, judicial dispute resolution, etc. Is this realistic? We are already approaching this goal, based on research from our New Ways for Families program in Medicine Hat, Alberta, Canada. Currently, we are at over a 70% settlement rate after two years, and it’s improving as professionals combine teaching parents conflict resolution skills with mediation and other out-of-court methods which reinforce the skills the parents have learned, so that the skills are used right away. New Ways for Mediation® in Divorce Our New Ways for Mediation method is ideal for reinforcing the skills that parents can learn – whether or not they have taken New Ways for Families counseling. In New Ways for Mediation, we teach and reinforce the parents using skills of asking more questions, making their own agendas, making proposals, reasonably responding to proposals, making decisions and refining their decisions. These skills for high-conflict parents are different from traditional divorce education classes, which focus primarily on providing information, rather than practicing skills, and which don’t focus on these decision-making skills. For these skills to be learned, they need to be broken down into small steps, with positive encouragement and lots of repetition. Then, these skills need to be tied to the decision-making process. The structure of today’s family courts is guaranteed to fail, because it does the opposite: it does not promote learning skills, it criticizes parents publicly, it does not provide repetition of use of skills and it does not tie parent education to decision-making. But what about domestic violence? What about child abuse? What about alienation? All of these are serious problems. The majority of these cases are already settled out of court, but there are no skills learned so that they often end up in court later on. With New Ways for Families plus New Ways for Mediation, many of these cases can be helped by the skills we teach in both methods: flexible thinking, managed emotions, moderate behaviors and checking yourself. However, some of these cases are so serious that they will be in family court – they are the 10% of high-conflict cases that need thorough attention by the court. With 90% of high-conflict cases handled out of court, judges can really focus and learn about the underlying patterns of behavior in these top 10% of cases and do a much better job than they have time for today. We developed the HCI PatternViewer computer service to address this concern more objectively for those cases that need to go to court. This way, family courts can focus much more on health and safety issues, rather than which parent should get which weekdays – a huge part of today’s family court caseload. 90% Family Court Goal I welcome feedback on my 90% goal. Do you think this is possible? Desirable? Unwise? Bill Eddy is a lawyer, therapist, and mediator. He is the co-founder and Training Director of the High Conflict Institute, a training and consultation firm that trains professionals to deal with high conflict people and situations. He is the author of several books and methods for handling high conflict personalities and high conflict disputes with the most difficult people.