Wednesday, 31st MaySECTION 3: EMPIRICAL SUPPORT FOR CHILD-INCLUSIVE DISPUTE RESOLUTION

Section 3: Empirical support for child-inclusive dispute resolution

A small pilot study on child-inclusive mediation showed promising trends for promoting greater understanding by parents of their children's experiences of their conflict (McIntosh, 2000), but beyond this there has, until recently, been no empirical evidence to distinguish the impacts of various dispute resolution processes on the parental state of mind or on children's mental health outcomes. This section summarises findings from two empirical studies of the outcomes for parents and children associated with a child-inclusive dispute resolution process. Part 1 summarises findings from a prospective study that compared long-term outcomes for two groups of separated families who took part in two different interventions in community settings: child-focused and child-inclusive mediations (McIntosh & Long, 2006). Part 2 summarises findings from a recent study of a child-inclusive intervention within the Family Court of Australia (McIntosh & Long, 2006). Implications from these studies are discussed in the final section of this paper.

Part 1: Children beyond dispute: A prospective study of outcomes from child focused and child inclusive dispute resolution

This study compared outcomes over one year for two groups of separated parents who attended mediation over parenting disputes. These parents engaged either in a child-focused intervention or a child-inclusive intervention at one of three Relationships Australia services (Canberra, Melbourne and Adelaide). This part briefly summarises the way in which the study was conducted and its core outcomes (see McIntosh and Long (2006) for full details of the research, including technical information).

Two hundred and seventy-five parents took part in the study (142 families). They reported on 364 children, and 193 of those children, aged 5-16 years, also participated directly in the research. Families were allocated to treatment groups depending on which month they entered the service and, from that point, indicated whether they were willing to participate in the research. No significant demographic differences were found between consenting families in the two treatment groups. There was a good retention rate over the year of 75% for the children and 83% for parents.

The child-focused intervention prioritised the psychological and relational elements of parents' separation, and making parenting arrangements that would best support the developmental needs of the children. Their children were not seen for the purposes of the mediation. The average length of time spent with both parents in this intervention, including intake, was 5.1 hours.

The child-inclusive intervention shared the same intent and approach, but also involved a brief direct assessment of children's experiences of the separation and of their relationships with each parent. The children's material was carefully formulated and considered with parents, and core themes incorporated into their negotiations. The average duration of this intervention with parents, including intake and feedback of the children's material, was 6.2 hours, plus a separate 1.5 hours with children.

Extensive repeated measures were collected from parents and children prior to mediation commencing, and then again 3 and 12 months after the conclusion of mediation. Outcomes monitored in this study included changes in:

Post-separation parental alliance;
Conflict management;
Parent-child relationships;
Nature of and management of living arrangements;
Children's wellbeing and adjustment;
Children's self-representations of parental conflict; and
Children's perception of parental availability and alliance.

Outcomes that were common to both groups

The baseline data showed clearly that entry into mediation was a point of high risk for both groups of families. Mothers and fathers reported high to very high current acrimony with their former partner and a low rate of resolution of disputes. Their children reported still higher rates of conflict between parents. Of concern was that, on parent report, one-third of children aged 5 to 16 were in the clinical range of psychological symptoms at the time of intake.

Over the year that followed mediation, follow-up data showed that significant and enduring reductions in levels of conflict for both treatment groups had occurred. The majority of parents reported improved management or resolution of the initial disputes that had brought them to mediation. Across all ages, children in both interventions perceived less frequent and intense conflict between their parents and better resolution of it, with a significant lowering of their own distress in relation to parental discord.

Outcomes that were specific to the child-inclusive intervention

There were no outcomes for parents or children in the child-focused intervention at either follow-up points that were not also evident in the child-inclusive treatment. In contrast, the child-inclusive intervention was associated with a number of effects not evident in the other treatment group. These effects were strongest for fathers and for children. One year after intervention, repeated analyses showed significantly better outcomes for the child-inclusive group in the following areas:

lower acrimony reported by fathers in relation to their former spouses;
greater improvement in the parental alliance for fathers;
children's reports of improved emotional availability of their fathers and greater sense of closeness to them;
greater contentment by children with care and contact arrangements and less inclination to want to change them;
greater satisfaction of fathers with care and contact arrangements of their children, despite initially lower levels of overnight contact than the fathers in child-focused interventions;
greater stability of care and contact patterns over the year;
preservation or improvement of the mother-child relationship, from the perspectives of both mother and child; and
significantly more durable and workable agreements over a year, as rated by mothers and fathers. Of those cases with no prior court involvement, child-inclusive parents were half as likely to instigate new litigation over parenting matters in the year after mediation than were the child-focused parents.

Considering the difference in outcomes

Three unique change mechanisms were identified for child-inclusive parents and children:

The wake-up call. The immediacy and intimacy of material created by the child consultation process meant that parents were frequently "moved" in a lasting way by the feedback they heard from and about their own children. The "wake up call" to these parents - to alter their behaviours around their children and their attitudes about their previous partner - was direct, compelling and made a strong impact. Although both interventions actively focused parents on their children's responses to their conflict and their needs in the post-separation restructure of the family, discussion about children and parental cooperation was necessarily generic in the child-focused intervention because the children's direct experiences were not obtained for mediation purposes. In this light, the power of parental projections and inaccurate assumptions about their children and about their relationship with each parent had greater licence to continue unchecked through the child-focused intervention. Resulting arrangements in that group could only be tailored, at best, to what parents "believed" their children needed.
A level playing field for fathers. The perceived "fairness" of the child-inclusive intervention was notable for fathers. Through the father's eyes, this intervention often functioned to remove the mother from the psychological role of "gatekeeper" of the information about their children. As such, in negotiations around his children's needs, this created the experience of a more level playing field for the "child-inclusive father" than for the "child-focused father". The child-inclusive fathers and mothers appeared able to listen to views that sometimes did not support their own argument when these views came from their children and were conveyed with empathetically by an independent specialist. Fathers in particular described the feedback session about their children as valuable and transformative.
"Developmentally appropriate" arrangements. Through a sharpened focus on each of their children's emotional and stage-specific needs in the child-inclusive treatment, parents' agreements tended to favour stability of residence and improved attachment relationships. Fathers in the child-focused treatment initially obtained significantly higher rates of overnight contact, which were then subsequently reduced over the course of the year, often through litigation. Fathers in the child-inclusive intervention tended to agree to maintenance of overnight contact rates, rather than driving for their "equal share". Of interest is the finding that these fathers were also substantially more content with the care and contact arrangements than fathers in the child-focused group, and that they reported closer relationships with their children. The findings suggest that the child-inclusive intervention assisted parents to create "developmentally appropriate" agreements, tailored to the core experiences of their children, and made it easier to resist arrangements tailored to any sense of adult entitlement.

Children's mental health outcomes

Children's overall mental health tended to improve over the year after intervention, although 21% of children remained in the clinical range, in contrast to about 15% in the general population. The combination of factors that best accounted for children's poor mental health outcomes over the year were their father's low education, high parental conflict, shared care and the experience of poor emotional availability in their mother. The findings suggest that the children whose emotional health suffered most were those for whom shared care posed a developmental risk.

Characteristics of poor progress

Both treatments had less success with long-term high-conflict cases and where parents had serious mental health issues. Findings support a careful screening of the entrenched and high-conflict spectrum, aiming to divert parents in extreme conflict into tailored, longer-term therapeutic interventions with the family. The data suggest a strong need for close screening of personality and early mental health symptoms at intake. Findings overall support the inclusion of criteria for both interventions that are capacity- rather than issues-based, that is, based around the ability of a parent to usefully participate and consider alternate and, at times, challenging information, rather than adhering to criteria based on the presence or absence of specific issues.

Implications for targeting the child-inclusive intervention

The child-inclusive intervention showed a capacity to bring about more durable and workable agreements with parents presenting with low alliances or poor mutual regard and cooperation than did the child-focused intervention. Parents presenting with undamaged or adequate alliances reported similar levels of progress across the two groups.

While both the child-focused and child-inclusive dispute resolution interventions led to reductions in parental conflict, findings of this study suggest an enduring level of relationship repair was specific to the child-inclusive approach. Significant changes in the quality of dyadic relationships were evident across the year between former partners and between each parent and their child(ren). From the children's perspective, the child-inclusive intervention was associated with closer relationships with their fathers and more emotionally available care from their mothers. In this light, the data point to the potential of the child-inclusive intervention to target the crucial public health issue of children's emotional wellbeing post-separation, through a consequent effect of improved parental relationships.

The data also point to the importance of the developmental and relationship context around care and contact arrangements. In keeping with other findings in this study, the data suggest that successful substantially shared care is an arrangement best determined by the capacity of parents to exercise maturity, cooperate, embrace the developmental needs of their children, and provide each child with emotionally available parenting in a climate of low conflict.

In all, this study provides evidence to support the further development and application of child-inclusive, therapeutically oriented mediation. The method promoted a significant level of repair to the parental relationship, offered children a greater sense of their parents' availability and produced developmentally appropriate agreements, with which parents and children remained more content over the year following mediation.

Part 2: A study of child inclusion within the Family Court of Australia: The Child Responsive Program

The Family Court of Australia introduced a series of significant changes to its responsibilities and role in relation to post-separation parenting disputes. The less adversarial trial (LAT) (formerly known as the Children's Cases Project) was the first of these major initiatives. The Child Responsive Program (CRP) is the second, designed to provide improved screening and support intervention that precedes and complements the work of the less adversarial trial.

The less adversarial trial is a supportive, consensual court process for separating parents, aimed at maximising the chances of settling their dispute effectively, without the full adversarial armoury. The LAT focuses on the interests of the child and the parents' or caretakers' proposals for the future of the child, rather than the history of the parties' relationships. A single judge, who adopts an inquisitorial approach in determining the issues to be decided and the way in which evidence will be accepted, manages each case. Crucially, as McIntosh (2006) found, the less formal, supportive and available manner of the LAT judge was pivotal in creating better outcomes for parents and their children than were achieved through the mainstream court process.

While sweeping in its beginnings, a new child-inclusive process was designed to precede the LAT, to better assist parties to focus on their ongoing parenting responsibilities and consider with greater sensitivity the developmental issues at hand in their dispute. The essence of the Child Responsive Program is the provision of a pre-trial service that rapidly engages parents in productive and supported consideration of their children's experiences and needs, as related to the dispute.

The Child Responsive Program sits in front of the less adversarial trial as a stand-alone or preparatory intervention. The core clinical process has been adapted from the child-inclusive model described in this paper, and is undertaken by a family consultant. There are up to six key stages in the Child Responsive Program:

Information sessions. These provide parents with core, multimedia information about post-separation conflict.
Intake and assessment meeting. A systematic exploration of the history of the conflict, parental relationship, substance and alcohol misuse, mental health issues, safety issues, children's needs and future care options, conducted separately with each parent.
Children's interview. This play-therapy-style session explores children's core needs and views. Brief feedback is given to parents on the day of this interview about the children's core concerns, feelings and needs in relation to the dispute.
Preliminary report. This report is prepared by the family consultant based on the parents' assessment and children's interview. It takes into account parents' initial responses to the feedback from their children's session and is used as a summary for the forthcoming feedback meeting with parents and legal representatives.
Feedback meeting. A formal feedback meeting is held with parents and their legal representatives, and a court registrar, re-stating the core themes from the children's session and the issues around the dispute resolution outlined in the preliminary report. Therapeutic and educational conversation with parents and their lawyers occurs, in the hope of increasing all parties' attunement to the needs of the children for effective dispute management and cooperation. The matter may settle at this stage, and Consent Orders are then made by the presiding registrar. Parents may also agree to test out particular arrangements for a period of time. Where necessary, the matter is set down for trial by the registrar.
Less adversarial trial. If the matter does not resolve during the CRP, the matter is set down for the LAT. The family consultant accompanies the parents through the LAT process, participating in the courtroom on the first day, speaking to the preliminary report and preparing a family report if ordered by the judge. After the LAT, the same family consultant conducts any follow-up required.

The formal evaluation of this program continues through 2007. Stage one is complete, having explored post-service data from parents and guardians who participated in the Child Responsive Program in the Family Court Registries of Melbourne and Dandenong during the first eight months of the pilot program. The purpose of this first study was to capture parents' immediate impressions of the Child Responsive Program and to document any sense of change that they reported in the nature of their dispute or their preparedness to cooperate with their former partner. (A further study in 2007, funded by the Family Court, will track families 4 months beyond the completion of their matter and explore outcomes at that point, with comparison to a similar group of families who went through the less adversarial trial in NSW, without the Child Responsive Program at the front end).

The data reported here are from 49 parents who participated in a full child-inclusive process and for whom complete pre- and post-service measures were available. The pre-service questionnaire was completed at intake, and the post-service survey was completed within 2-3 weeks of the last CRP contact.

The early findings are encouraging. Findings of note included:

Increased willingness to cooperate: A striking change in parents' willingness to attempt to cooperate with each other followed immediately after the CRP intervention. Parents reported a strong swing from very poor parental cooperation pre-CRP to an immediate improvement in their future intent to "get along", for the sake of their children. The extent to which this intent translates into ongoing improvement in cooperation is currently being explored in the follow-up study.
Pre-court settlement: In 55% of matters explored in this study, the CRP process was able to settle the dispute without the matter proceeding to trial.
Positive impact of the children's interview: No parent expressed concern about the nature of the children's interview or its impact on their children. The vast majority of parents reported positive experiences for their children and for themselves from the early involvement of the children. Forty-four per cent of parents said the feedback from their children was the most influential aspect of their court process.
Conflict reduction: A trend for reduction in minor conflict, acrimony and distrust was evident between the parents in this study. No change was seen in levels of major conflict in the phase immediately following the CRP; however, the follow-up study will further explore parents' post-court management of conflict.
Satisfaction with care and contact decisions: Parents reported high levels of satisfaction post-CRP with the living and visiting arrangements decided during the CRP.
Clarity about future directions: Ninety per cent of the sample left the CRP with a strong sense of how to carry on from that point in the management of their separation and dispute.
Preferred method for CRP practitioners: The family consultants uniformly experienced the CRP as a powerful and preferred way of working with families pre-trial. The overall mood of the family consultant group, despite a heavy workload, remained positive throughout the pilot. They reported a sense of privilege in being able to work in this way, of feeling they had arrived at a model of pre-trial intervention that did justice to the psychological distress of the family and, in particular, of the children affected by the dispute.

An important screening role for the CRP was identified in the early detection of children who require child protection or therapeutic services, and of parents with personality or mental health disorders who require specialist services to assist their adjustment to and management of the separation and their ongoing relationships with their children. Limitations were identified in the capacity of the CRP to impact on the dynamics of parent-child alienation matters, which clearly require long-term therapeutic intervention.

The application of the child-inclusive model to the less adversarial trial program and to community-based family dispute resolution are new and exciting initiatives in Australian family law. As discussed in Section 1, aside from the way in which these programs embrace the UN Children's Convention, they have produced significant therapeutic outcomes. The mechanism of change in each appears to involve support for the higher capacities of the parent who sits within the aggrieved litigant or mediation party. Hearing the inevitable appeal from their own children for a reduction in conflict and change in the climate of family communication has had powerful effects that are not equally well achieved by methods that do not permit direct exploration of children's experiences or by adversarial processes that further inflame parental acrimony.

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