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Recommendations
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problems

2.1 Therapeutic approach to adjudication

Guideline for family problems / COMMUNICATING: 2.1 Therapeutic approach to adjudication

Interventions and evidence explained

Most plausible interventions explained

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).

Selected interventions for comparison (defined as a PICO question)

For people separating, is a therapeutic approach to adjudication more effective than the adversarial approach to adjudication for their well-being?

Search strategy

The databases used are: HeinOnline, Westlaw, Wiley Online Library, JSTOR, Taylor & Francis, Peace Palace Library, ResearchGate, Bloomberg Law and LexisNexis Academic.

For this PICO question, keywords used in the search strategy are: mediation, litigation, judicial, court-annexed, judge, decision, adjudication, needs-based, problem-solving

Assessment and grading of evidence

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)

Quality of evidence and research gap

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.

Comparing the two interventions

Desirable outcomes of the interventions

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).

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 of the intervention

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).

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.

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Table of Contents

1.1 Authoritative parenting
1.2 Limiting the disclosure of inappropriate information
1.3 Limiting their children’s exposure to conflict

2. Recommendations on COMMUNICATING
2.1 Therapeutic approach to adjudication
2.2 Mutually constructive communication

3.1 Generate income
3.2 Problem-solving approach   
3.3 Live in safe homes         
3.4 Providing non-permanent spousal maintenance
3.5 Share the costs of upbringing 

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