Apply the problem-solving approach
For a practitioner, it can be difficult to encourage families to work together and find solutions. Family conflicts often lead to tense and emotional situations. But there are effective methods to reach agreements.
The problem-solving approach focuses on finding solutions for the parties’ underlying needs and objectives. The first step for the parties and their helpers is to assess these needs and objectives. Then, the most appropriate interventions are identified, followed by negotiation. Remaining issues are solved by mediation, and if necessary, by adjudication. Compliance and effectiveness of the agreed upon solutions are monitored.
International research shows that taking the problem-solving approach contributes to reaching fair solutions.
What practitioners say
Consistent with literature research:
Work towards building agreements based on shared understandings. All family members and their helpers should feel a shared responsibility to focus on finding a solution together.
Listen to needs of the other person. Parties should try to listen to and understand the other person. They should ask questions if there is unclarity about what the other person needs. When responding, parties should try to contribute to a solution and not just focus on the problem.
Identify the needs of each family member. What does each family member need in order to be able to move on?
Actively listen to what is being said. As a party, be an attentive and active listener who seeks to have a good understanding. Ask follow up questions. As practitioner, ensure both parties are actively listening to each other’s positions.
Reframe stories into needs. Let family members share what they want to share, but summarize and reframe the stories into needs. Blame about the past can be transformed into needs for the future.
Remember that you are not alone. Parties can try to ask for help from family members, friends, neighbours, clan members, Local Council Court, religious leaders etc. when they cannot reach agreements.
Involve neutral helpers. Family members should all feel confident that their helpers in the process are impartial and supporting fair solutions. As practitioner, give equal time and attention to each family member.
Take your time. It is important that all family members are given the time and space to share their underlying needs. Invest time in communicating. Summarize needs and acknowledge them before moving on.
Evaluate agreements. Families should ask each other about how they each feel about arrangements and make adjustments where necessary. All family members should be supportive of agreements.
Involve other providers/experts when needed. As a practitioner, assess the situation and your capacity and expertise. Engage other service providers or experts who can complement your services and help support the process.
Other suggested practices:
Consider the context of the conflict. Are there existing (clan) structures that can be used? Is there a need for a gender-specific helper? Are there any local norms that need to be considered?
Ensure there is privacy and confidentiality for all. Family members should feel safe in their privacy and confidentiality during the process.
Include all the affected family members. All family members, including children, could play a role in solving the problem as it affects them all.
Involve the community if helpful. Involve close family/community members who understand the situation and can help to solve the problem.
Encourage timely interventions. Ensure that interventions begin at an early stage in the conflict. Do not wait for the conflict to escalate.
Resources and Methodology
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:
- An assessment of the needs and objectives of both parties;
- An identification of the most appropriate interventions for the parties;
- Arbitration, adjudication or another form of decision-making where mediation is not successful;
- Monitoring compliance and progress.
For people separating, is taking a problem-solving approach more effective than an adversarial approach for their wellbeing?
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.
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)
- 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)
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.
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).
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.
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).
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).
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.
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.