Recommendations
on family
problems

Guideline for family problems / RESOLVING: 3.2 Problem-solving approach

Interventions and evidence explained

Most plausible interventions explained

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:
1. An assessment of the needs and objectives of both parties;
2. An identification of the most appropriate interventions for the parties;
3. Mediation;
4. Arbitration, adjudication or another form of decision-making where mediation is not successful;
5. Monitoring compliance and progress.

Selected interventions for comparison (defined as a PICO question)

For people separating, is taking a problem-solving approach more effective than an adversarial approach for their wellbeing?

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, fairness, process, outcome, agreement, divorce, family.

Assessment and grading of evidence

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)tem
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)

Quality of evidence and research gap

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.

Comparison of the interventions

Desirable outcomes of the interventions

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 of the intervention

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.

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).

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).

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.