A family systems approach to conciliation in separation and divorce

Journal of Family Therapy (1985) 7: 357-377

A family systems approach to conciliation in separation and divorce

Margaret Robinson” and Lisa Parkinson?

This paper argues for a family systems approach to families who are in conflict during the process of divorce, particularly in relation to custody and access for their children. The concept of ‘conciliation’ as a brief method of intervention is both defined and discussed and principles and skills are identified. The influence of the context within which conciliation is practised and in particular, the power which the conciliator holds, or is perceived by the family to hold, is also discussed. These ideas are illustrated by case examples.

Introduction

The Family Policy Studies Centre has predicted, on current divorce trends, that one in five children under sixteen will experience the divorce of their parents (Rimmer, 1983). Other children will experience multiple separations, and even a second divorce. These trends make it likely that a large proportion of children referred to child and family guidance clinics, social services departments and other agencies, will be children whose parents are separated or divorced.

Much has been written about family therapy with intact families, and there is now a growing body of literature on different forms of intervention with families affected by separation and divorce. British literature includes Robinson (1 980), Bentovim and Gilmour (1 984), Bentovim and Tranter (1984) and Parkinson (1983). These families have particular needs, as they go through a process akin to bereavement, many experiencing a great deal of distress, confusion and conflict over a long period. Murray Parkes (1975) describes the process of mourning as a series of stages which individual adults need to work their way through in their own way and time, in order to regain their personal autonomy and the capacity for making new attachments. Similar stages of emotional reaction apply to children,

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358 M . Robinson and L. Parkinson whose capacity for attachment is jeopardized if they are not helped to grieve appropriately for what has been lost. These stages include shock, denial or avoidance, protest, despair and eventual recovery. During the stages of protest and despair, which may not easily be distinguishable from one another, anger and guilt are common, and are often the more frightening because of their intensity and unpredictability.

Families experiencing the death of a parent, or of a child, can usually draw on the strengths of relatives in order to obtain comfort in the face of individual and family losses. In families who are experiencing parental divorce it seems that it is the element of anger which becomes aggravated by feelings of betrayal and lack of trust. This, coupled with feelings of guilt, may also estrange family members from one another and deprive them of the opportunity for open and shared grieving, thus allowing some mutual comfort.

Children in divorcing families generally feel anger, fear, worry, sadness and loneliness, and they may also experience the pull of divided loyalties as well as other age related anxieties. Rutter (1975) considers that children may be harmed by open hostility or by lack of affection in the home. The stress on children is accentuated, if they become embroiled in parental disputes and especially if each parent denigrates the other. Disputes over custody and access are also likely to harm children and they will be more damaged if these and other discords continue over the years. But Rutter stresses that this damage is not irreversible if later conditions are more conducive to the child's development.

These bereavement-related processes in divorcing families are frequently exacerbated by an adversarial legal process which is neither appropriate nor helpful for many couples seeking judicial solutions to their marital difficulties. Traditionally, our legal system has required lawyers to represent their clients vigorously in order to procure the best deal possible in the circumstances, but during the past ten years or so, there has been considerable dissatisfaction with these adversarial legal processes from a number of sources, including the legal profession itself. It is not possible to discuss these in detail, but these dissatisfac- tions have provoked changes in family law, changes in court procedures and the rapid expansion of specialist Conciliation Services in different countries most notably in the U.S.A., Canada, Australia, New Zealand and more recently in the U.K.

There has been a growing interest in conciliation as a method of conflict resolution between parties involved in different kinds of

Conciliation in separation and divorce 359

conflict, and particularly marital and family conflict. Conciliation as a method of family conflict resolution may also be relevant in other more traditional settings, such as child and family guidance clinics and in social services departments; but practitioners need to consider whether their traditional rBle and responsibilities within their agency are compatible with the principles and responsibilities of conciliation.

The purpose of this article is to consider a family systems approach to conciliation and to consider some of the models being used, as well as the influence of differing systems within which conciliation may be practised.

A family systems approach to conciliation

Divorce is a process during which the family system undergoes a painful process of transformation and which involves each family member in some kind of process of bereavement (though this may not occur at the same time). The loss of the family system as an established and recognizable unit also needs to be mourned. During the separation and divorce process the family system becomes regrouped into two separate households (though there may be other temporary households as part of the process of transition). The failure of the marital system leads to a radical change in the rbles of husband and wife and may involve other partners such as cohabitees and potential or actual step- parents.

Sibling relationships are also affected by divorce. In some families siblings may draw closer together, as if to fill the gaps in the family system; whereas in others they may withdraw from each other, becoming isolated and unable to share and thus support one another. Each child is also preoccupied by his or her own individual experience which relate to the child’s age and stage of development. Characteristic patterns of communication in separating and divorcing families express anger, bitterness, despair and lack of trust. Both parents, fearing the loss of their children’s affection and loyalty, often compete for positions of power over custody and access and financial matters, these becoming intertwined and virtually inseparable. The family structure, with its rules relating to family interaction and communication and indeed the meaning of life as the family know it , is in a state of collapse.

The whole belief system held by the family is in jeopardy, members questioning the validity of the past and in desperate fear for the future. Each individual family member suffers both a deep blow to their self

360 M . Robinson and L. Parkinson

esteem and some change to their personal identity, and the family system as a whole goes through major changes which transform its structures and functioning.

Conciliation

The idea of conciliation is not new, and has been a familiar mechanism in many societies whereby parties in conflict would together consult a third party who was seen as both wise and impartial; and with whom they could together work out an agreement or settlement which if not exactly agreeable, might be acceptable to both. The rBle of conciliation in marriage breakdown was first discussed in this country by the Finer Committee on One Parent Families (1974). The Finer Committee distinguished between reconciliation which is defined as the ‘reuniting of spouses’ and conciliation which is described as follows:

assisting the parties to deal with the established breakdown of their marriage, whether resulting in divorce or separation, by reaching agreement or giving consents or reducing the area of conflict upon custody, support, access to and education of the children, financial provision, the disposition of the matrimonial home . . . and every other matter which call for a decision on future arrangements (par. 4.288).

This somewhat legalistic definition is appropriate because conciliation in relation to separation and divorce must be considered within the context of family law, and the procedures with which divorcing couples are obliged to comply.

The law has traditionally handled disputes between divorcing couples as a competition or battle where one parent ‘wins’ and the other ‘loses’, in which the actual needs and feelings of the children may be almost overlooked, while other issues are fought over. Legal terminology even emphasizes the polarization, as for instance listing the parents as Smith v Smith (rather than In the Marriage of Smith, as is the practice in Australia). The widespread dissatisfaction with this adversarial approach both within the legal profession as well as in other disciplines, has led to the development of considerable interest in conciliation (as distinct from reconciliation for which there are well known counselling agencies). There has been an Interdepartmental Committee on Conciliation (1983) whose assessment of conciliation rested on financial considerations of doubtful validity and whose research methods have been heavily criticized by academic researchers. They did, however, recommend further research, which will be


undertaken by a Conciliation Project unit to be based at Newcastle University. The Lord Chancellor has also set up a Committee on Matrimonial Causes Procedure under the Chairmanship of Mrs Justice Booth. This Committee published a Consultation Paper (Booth, 1983) and it is hoped their final report will be published in summer of 1985.

Since the Finer Report, a number of practitioners from differing professional disciplines (probation officers, social workers, marriage guidance counsellors, psychiatrists, lawyers and others) have begun to develop the concept of conciliation as a form of conflict resolution in family breakdown associated with separation or divorce. Because of the different settings in which conciliation is practised, as well as the differing professional orientations of the practitioners, we offer a definition which, while not conclusive, may be a useful working interpretation. ‘Conciliation is a method of brief intervention, which focuses on particular issues of family conflict, where there is pressure from inside and/or outside the system for decisions to be made within a legal context, and where such decisions have long term legal and often financial implications for those involved. The context within which conciliation is practised influences the process, and may even invalidate i t , if the practitioner has implicit or explicit power in the decision making process.’

Conciliation in issues relating to separation or divorce generally involves both husband and wife decisions and parental decisions relating to the children of the family. Such decisions need to be made at a time when all the members of the family are especially vulnerable to professional and statutory intervention. The particular influences of the organizational system within which conciliation may be practised will be considered in a later section.

Principles of conciliation

The basic values on which the process of conciliation is based, while still subject to some debate, are liable to be distorted by other influences such as views held by the professional practitioners and also by the policies of the organization within which the method is practised. However, certain basic principles are emerging which seem to be generally held, though the priority given to them may differ.

(1) That the separating or divorcing couple should voluntarily and simultaneously agree to involve themselves in the process. Even when the referral is initiated by the Court this voluntary participation is still considered to be essential.

362 M . Robznson and L. Parkinson

(2) That the parties should be empowered to make their own decisions.

(3) That the person acting as conciliator is perceived as neutral and non-judgemental, and should not have power to enforce any agreements reached.

(4) The above principles carry the implication that conciliation is confidential between the parties involved and that the content should not be revealed to other agencies without both parties’ consent. A summary of the outcome may be given to solicitors, with the consent of the parties involved.

(5) That any decisions reached are made within a legal context. Some of those who practise as conciliators also consider that the children of the family have a right to be involved in the process. at least at some stage, though all are agreed that children should not be asked to make the final decisions regarding custody and access to their parents. Others prefer that the parents retain the power to initiate the possibility of involving their children, or that the children should not become directly involved at all.

Divorce and children

Recent research findings (Wallerstein and Kelly, 1980; Hetherington et al., 1981; Mitchell, 1983, 1985; Walczak and Burns, 1984) all agree that the impact of the divorce process on children is considerable. While feelings of sadness, anxiety and isolation are common, other intense feelings are also present which are related to their age and stage of development. Many younger children for instance experience intense guilt, feeling either that they have caused the separation of their parents, or that they have not been good enough children, because one of their parents has left home. There is considerable evidence that many parents often do not explain to the children why they are seeking a divorce, or attempt to help them with their feelings about the future (Murch, 1980; Mitchell, 1983, 1985). From the perspective of the spouses in marital separation there is also evidence that both partners undergo considerable stress, anguish and depression during and after separation, particularly when they are custodial or non custodial single parents, but also as cohabiting or remarried partners (see Weiss, 1975; Keshet and Rosenthal 1981; Ambrose et al. , 1984; Burgoyne, 1984; Burgoyne and Clark, 1984).

Until very recently there has been little British research into the divorce process and its aftermath on the life cycle of families which


have undergone this major transformation. The research cited earlier focuses on the experience from the perspective of one or other of the divorcing spouses, either at the time, or on the children’s reactions. Even the Wallerstein and Kelly research (1980j, which meticulously documents the effects of divorce on 131 children over a period of five years, pays less attention to their parents and does not attempt to focus on the family system per se. However, there have been some very recent studies (Sager et al . , 1983; Lund, 1984; Morawetz and Walker, 1984) all of which take a family systems approach to the divorce process, including single parenthood and remarriage, and which indicate how important it is for children that their parents are able to maintain or develop a co-operative co-parenting relationship after their separation. Sager et al. (1983) distinguish the importance of the remarried, supra family system which include significant members (parents, step- parents, cohabitees and other partners) as well as other kin, such as grandparents, each of whom may have a rBle to play in the remarried family system; and each of whom has to make some changes in relationships with the remarried family members.

A family systems approach to conciliation in divorce has a number of advantages for the practitioner acting as conciliator, whether or not the children are actually involved in the process of conciliation.

(i) It enables the conciliator to keep the needs of all the family members in perspective during the process of conciliation. This makes it possible to keep in mind the opportunities which remain or might be developed in order to meet the needs of all the family members both in the present and in the future.

(iij The conciliator is helped to maintain a position of neutrality in the family conflict, thus gaining their trust and enhancing the possibility of the parents reaching agreement or even some degree of settlement.

(iii) This approach assists the conciliator in the task of helping the parents to distinguish their spousal rBles from their parental d e s , and begin to redefine their parental rbles in a way which may open the door to the possibility of co-parenting (an achievement which they may not have been able to manage even during their marriage).’

(iv) It can help the conciliator to recognize when either of the parties is trying to draw the conciliator into an alliance.’

(v) The conciliator can be guided by the family systems approach, into gauging when it might be helpful to suggest that the children, or other family members, might join the sessions.


(vi) Knowledge of family systems and the tasks which are expected of family members at different stages of the life cycle, can assist the conciliator, not only in encouraging parents’ proposals, but also in making suggestions which take into account the future needs and potential difficulties of the single parent’s household and step-families.

(vii) Since conciliators themselves are increasingly likely to have been personally affected by separation and divorce, either directly or indirectly (as divorcees, children of divorced parents, or as relatives or close friends), a family systems approach is of assistance in monitoring their own feelings, during what is inevitably a very demanding method of intervention for the conciliator.

Conciliation skills

There are powerful arguments in favour of brief (rather than long term) intervention during the divorce process. Brief intervention is usually considered to involve up to about six sessions, which may be spaced strategically so as to complement the psychological and legal processes of the divorce. During the bereavement and major transformation of divorce, the family system and each individual member are at their most vulnerable and yet there are pressures from within the family itself, and sometimes from caregiving systems outside in the community, for vital decisions to be made.

There are also considerable pressures from the legal system which impinge upon the family and may even take over the decision making. For example, the judiciary has power to make decisions regarding custody and access, maintenance and the matrimonial home, if the parents are unable to reach agreement. The decisions which have to be made have far reaching legal and financial consequences for the whole family. Brief intervention at this time of crisis, can enable the family system to develop and use new coping systems on its own behalf which will not only aid its members in their present plight, but may also provide new strengths for the future (Caplan, 1961, 1985; Robinson, 1969; Parkinson, 1983).’

Generally, conciliators in the U.S.A. tend to work from a negotiations model, which is drawn from conciliation in industrial relations, or they may use a family systems model which incorporates many of the techniques of family therapy, though the primary objective is to reach agreed decisions. Haynes (1982), who draws primarily on industrial relations negotiation skills, describes a conceptual model of family mediation and lists those skills which he

Conciliation in separation and divorce 365 considers of relevance in the early stages: engagement; interviewing; assessment; referral; issue identification; relationship; ‘third ear’ listening; process control; problem definition and problem solving; assisting clients to separate their own needs from those of other family members; separating spousal from parenting needs; communicating professional knowledge and conflict management and (our addition) containment.

Haynes is particularly helpful in discussing bargaining and negotiation. He describes methods of conflict management, option development and rank ordering of priorities; the importance of maintaining clear lines of communication; and clarifying the consequences of chosen solutions. He also adds the helpful rider of limiting the use of therapeutic skills only to those strategies which assist the conciliation process.

While originally Haynes would have one interview with the children of the divorcing partners to discuss the agreement made by their parents he no longer does so. He now (1984) considers that successful mediation which includes reaching .agreements about financial and property matters as well as custody and access, should not limit the power of parents and that they should explain to their children what they have decided. (This assumes that parents are able to share information about arrangements with their children in a sensitive and supportive way.)

A basic principle in conciliation is that the parties should voluntarily agree to take part in the process. A second is that they should be empowered to make their own decisions. Those acting as conciliators should therefore have skills which enable them to engage two or more parties in considerable conflict, each of whom has a great deal to lose in a process which may initially involve them in some even more painful confrontation. Conciliators have to pay scrupulous attention to the balance of concerns of each spouse: failure to do so will jeopardize the chances of reaching agreement, and may lead to the withdrawal of one of the partners, possibly resulting in protracted court proceedings and/or the loss of this member’s involvement in the transformed family system.

Some models of conciliation being developed in this country are based on a family systems approach in which the skills customarily employed in brief intervention in family assessment are an essential tool and therefore applicable to conciliation. Many of the skills which are commonly used in family therapy are also useful in conciliation. However, there is a danger of implying to the family that divorce is


pathological and that the family needs to have therapy. Families who ask for or accept referral for conciliation should not therefore be submitted to family therapy techniques which deny or restrict the parents’ power to make their own decisions. We wish therefore, to stress the importance of the couple’s own decision making and the difference between controlling structure and controlling outcome of the process. Techniques such as reframing, positive connotation and redefining the generation boundaries may be applicable without limiting the parents’ autonomy.

Saposnek (1983), an American family therapist who is also a conciliator, writes tellingly of the strategies which parents and children use in attempting to manage custody disputes and provides helpful specific strategies for the conciliator. These include: pre-empting; giving information and hope; complimenting; reframing; anecdote telling; resisting a ‘time squeeze’ from either party or from their legal advisers.

As we shall discuss when considering the different contexts within which conciliation may be practised, it is important that the family members are fully aware of the amount of power which is held by the conciliator as well as the uses to which it may be put under certain circumstances. For example many, if not most, conciliators would urge a parent making allegations of child abuse to inform the appropriate authorities, and would only report the case themselves if neither parent were willing to do so. This possible restriction of parental power is a controversial aspect of conciliation and a recent article by an American lawyer (Mnookin, 1984) which discusses the limits to such negotiation gives some useful guidelines. In discussing what he terms private ordering (arrangements worked out by the parents themselves), Mnookin considers that there are three justifications for limiting the power of the parties. These are as follows: (1) When one party is incapable of dealing with complex transactions. (2) When the bargaining power is unequal. (3) When there are effects on third parties such as children, who are not represented in the bargaining procedures. He suggests that statutory child protection responsibilities should be a guide in such cases.

As both Haynes and Saposnek are in private practice as mediators in U.S.A. they also give useful advice about the drafting of written agreements. In this country there is some variation as regards written agreements, but most voluntary services follow the National Family Conciliation Council’s Code of Practice (1984) which was drawn up in consultation with the Law Society’s Family Law Committee. According


to this Code of Practice it is a'greed that conciliators should seek the parties' permission to have direct contact with their solicitors. Conciliation is mainly concerned with conflict over the decision to divorce and with disputes over custody and access problems, without entering into detailed financial negotiations. The content of conciliation is normally confidential and legally privileged (that is, not reportable to the Court) unless both parties agree to waive their privilege.

It is important to develop good liaison between solicitors and conciliators. Conciliators whose professional training is not the law need to acquire knowledge of matrimonial and child care law and to understand the concerns of the legal profession, who have a professional duty to advise their clients what is in their best interests when taking instructions from them. Conciliators with a professional training in the law, need to acquire some knowledge of human growth and behaviour, marital and family interaction, psychological research into the effects of divorce on children, as well as a respect for the integrity of social workers, psychologists and psychiatrists. It is essential that all those practising conciliation consider whether the powers and responsibilities inherent in their professional roles are compatible with the conciliation task.

Is conciliation successful

Although current research seems to indicate that agreement or settlement is possible to achieve in conciliation in approximately 4 3 ~ 7 0 % of the cases referred (Davis, 1982), these figures include partial as well as full agreements. Research conducted in Conciliation Counselling at the Family Court in Toronto (Irving and Benjamin, 1984) found the following: ( 1 ) A substantial majority of clients (70% of 352 client couples) either achieved a written agreement or reconciled and resumed living together. (2) Agreements achieved during the course of conciliation counselling tended to endure at least for the follow-up of one year. (3) A group of lawyers (fifty-two) unequivocally stated that not only was the Court saved time and money by avoiding unnecessary litigation, but lawyers and clients' time was saved by encouraging them to make better use of legal services. (4) Both clients and lawyers considered that conciliation counselling helped to clarify issues in the dispute. (5) Client couples reported that counselling reduced conflict and emotional tension while also facilitating better communication and understanding. ( 6 ) By combining objective


outcome (agreement) and subjective relief conciliation counselling is associated with significant improvements in life circumstances. The authors conclude that these findings indicate that conciliation counselling is a cost effective method of handling pre- or post-divorce conflict resolution.

For most families where the parties are not able to reach agreement, the decisions will ultimately be judicial ones; though some families just give up. It is therefore important that conciliators in terminating cases where they have not been successful in achieving voluntary agreement, prepare the family for what is likely to follow in as constructive manner as possible. Many couples still achieve agreement at what is known as ‘the door of the Court’ which in effect, is under the threat of a judicial decision being made for them, if they are not able to reach agreement or settlement themselves.

Stages of the divorce process at which conciliation can be initiated We have tried to make it clear that we see divorce as a process rather than an event. Couples who have decided to separate pending divorce can refer themselves or be referred by solicitors for conciliation (if there is a service in their area) to try to reach agreement regarding the custody and access for their children and/or to seek assistance in how to prepare them for the future; or to explore whether they do in fact need to divorce immediately or even at all. If conciliation can be initiated at the early stages, before or soon after legal advice is first sought, there are more options open to them, including of course, the possibility of reconciliation. It is also possible that any future divorce might be based on mutual consent. Petitions based on the allegation of adultery or unreasonable behaviour quite often enrage the respondent and may result in a lengthy and recriminatory process, which may or may not be orchestrated by legal processes and procedures.

A second stage when conciliation may be introduced is when there is a petition pending (or proceedings in the domestic court) and there are some contested issues, such as custody, but as yet, no date set down for the hearing. It is possible to initiate conciliation while an application for legal aid is being processed, especially if there are matters of some urgency to be resolved, such as where the children might be likely to live.

The third and fourth stages are related to what is often known as In Court conciliation. Where there are contested issues, the Registrar or Judge may hold a preliminary hearing at which he or she invites the couple to withdraw with the Divorce Court Welfare Officer


(D.C. W. 0 .) for ‘on the spot’ conciliation. The Principal Divorce Registry and many County Courts are now beginning to develop models of In Court Conciliation, but this is normally very brief and may give insufficient attention to the needs of both parties and their children. Some Divorce Court Welfare Officers, however, see it as an opportunity to initiate conciliation which can be continued ‘out of Court’ if the Court is willing to adjourn the hearing.

Conciliation may also be attempted following the Children Appointment (Section 41), when a Judge is required to consider whether the arrangements proposed for the children are satisfactory. Many Divorce Court Welfare Officers consider that conciliation is an appropriate method to use when a welfare inquiry has been called for. However, there is considerable debate as to whether a Divorce Court Welfare Officer can combine the tasks of conciliation and an investigative assessment, since conciliation may fail to achieve agreement between the parents and then a detailed report which includes a recommendation to the court may become necessary.

Several of the points we have discussed are illustrated in the following examples.

Case example 1

Derek, on the advice of his solicitor came to the Independent Conciliation Service a few weeks before Christmas, asking our help to enable him to see his two sons (Tim, fifteen, and Mark, nine), whom he had not seen for two years and who were said to be refusing to see him. Derek was somewhat tearful during this first interview, but the conciliator learned that he and his wife Melanie has been married thirteen years and that the marriage had deteriorated partly because his job entailed a good deal of travelling and week-end work. He had started an affair with Lesley and after a row he had left home and was now living with Lesley. Melanie had recently filed a petition for divorce asking for sole custody. He had tried several times to talk to her on the phone, but she had screamed at him. When the conciliator learned that the Divorce Court Welfare Service were involved because a welfare report had been asked for, she suggested Derek should contact the D.C.W.O. and explain his position.

The D.C. W. 0. gained the consent of Melanie and took the boys to meet their father, but it was a disastrous meeting with all three of them tearful and angry. In his report the D.C.W.O. recommended sole custody with no access, but the Court after granting the decree nisi and


on learning of Dereks attempts to attend conciliation adjourned the Custody hearing for three months. The D.C.W.O. and Derek’s solicitor contacted the Conciliation Service and the Conciliator saw Melanie on her own on two occasions. She was hurt, angry at being abandoned by Derek and felt considerably burdened by her present position as single parent. After being allowed to express her bitterness and distress she was able to express her concern that the boys were growing up without contact with their father. She reluctantly agreed to see Derek to discuss the boys’ future, though she would not ‘force’ them to see him. The conciliator saw Derek on his own and explored possible ways in which he and Melanie could come to some agreement.

At the joint interview the conciliator was careful to allow Melanie to express some of her hostility but when she constantly interrupted and denigrated Derek, the conciliator diverted her and maintained the focus on the boys’ needs. Melanie agreed to bring them to a further session when they could meet their father, though she would not stay herself. This was agreed and Melanie duly brought them. In the intervening week she had telephoned Derek and asked him to go to Mark’s school play, which he had done.

The next session was nearly jeopardized by Derek arriving almost an hour late but he agreed to take the boys out for lunch and to deliver them to Melanie’s place of work; this she accepted with good grace.

The Conciliator explained to the boys the situation with regard to the court and that any decisions would be made by their parents, but that their own ideas about how often they wanted to see their father would be useful. The session was slow at first, but by the end, Derek and his sons were engaged in active discussions about cars and music and they had suggested that seeing him fortnightly would be best.

At the next and last joint interview, Derek and Melanie settled on fortnightly access visits. It was agreed that he would fetch and return the boys to her home, having confirmed arrangements beforehand with Tim. He also agreed that for six months the boys would not meet Lesley as this had been a bone of contention to Melanie. It was agreed that Derek and Melanie would both inform their solicitors and that the Conciliator would write to the D.C.W.O. It was also agreed that there would be a follow up session six months later.

In this case, conciliation enabled the parents, who had ended their marriage precipitately and with many unresolved issues, to begin the process of psychological divorce while at the same time enabling the boys to regain contact with their father. At the present time access has continued regularly and satisfactorily, Derek regaining his previously


good relationship with his sons. He has kept his side of the bargain, but Melanie is currently avoiding returning for the follow-up visit as she realizes that this will entail discussing the possibility of the boys meeting Lesley.

Commentary on case example 1 During this process of brief intervention, the conciliator, by taking a family systems persepctive, did not attempt to deal with the past, nor to assuage or work through the pain and guilt over the failure of the marriage and the children’s refusal to see their father. The strategies used were a combination of family therapy techniques (joining, positive connotation, reframing, diversion, restructuring boundaries) and those drawn from a negotiation model (issue identification, detailed bargaining over arrangements and conflict management and shuttle mediation between the parties). The results of the actions which she took are as follows:

(1) By focusing on the issue of recommencing access, the conciliator encouraged Derek to approach the D.C. W .O. and pursue this.

(2) When this failed and the family were re-referred by the judge, the conciliator, by contacting Melanie rather than Derek, demonstrated her neutrality and concern for the family as a whole.

(3) By seeing Melanie on her own, as she had seen Derek, the conciliator was able to join with her and begin to rebalance the power between the couple. Through the use of forward questioning she was able to engage Melanie’s concern for the future of her boys who would be growing up without seeing their father.

(4) By explaining to Melanie that the counciliator could not help unless Melanie was willing to meet with Derek, the conciliator demonstrated her own lack of power, in contrast with that of the court and began to empower the parents to make their own decisions. This was consolidated in the second interview with Derek.

(5) In the joint interview the conciliator reopened communication between Melanie and Derek and began to restructure the boundaries, distinguishing the parental rbles from those of husband and wife and recognizing the end of the marriage. She also demonstrated her trustworthiness and neutrality and ability to manage conflict. Melanie was thus freed between this and the next session to make an offer to Derek to see Marks school play.

372 M. Robinson and L. Parkinson

(6) By beginning to rebalance the power between Derek and Melanie the conciliator helped them to move towards a ‘win/ win’ agreement rather than a win/lose outcome, as would have been the case had a judicial decision proved necessary. This was an incomplete agreement, as Melanie still considered herself one down in relation to Derek who had Lesley, while she had no other partner. Derek, having achieved the access to his sons, was prepared to keep to his agreement to delay a while before taking the boys to his new home.

Case example 2

Mrs J. telephoned the Conciliation Service at her solicitor’s suggestion to ask for an appointment concerning her son, Sam, aged fifteen years. She explained on the telephone that Sam lived with his father (Mrs J.’s former husband) and stepmother, while Jimmy aged eleven, the younger son of her first marriage, lived with her and her second husband. Mrs J. had left her first husband four years previously and had divorced and remarried two years later. There was evidently a great deal of animosity between her and her ex-husband and Sam acted as the only go-between; there was no contact between Jimmy and his father.

With Mrs J.’s consent, the conciliator contacted her former husband, Mr W. via his solicitor. Mr W. agreed to conciliation and said that he wanted Sam to be involved because Sam was old enough to take his own decisions. It emerged that Sam did not get on well with either of his step-parents and that he also felt a considerable distance between himself and his father. As access visits to his mother led to rows, in which messages about dates and times became hopelessly confused, Sam was in a state of limbo between the two households, feeling at home in neither.

Matters had come to a head recently, when, rather than leaving Sam alone at his father’s house, Mr and Mrs J. had felt obliged to take him with them and Jimmy on a caravan holiday. According to them this had been a disaster because Sam teased and fought with Jimmy and was ill-behaved and unco-operative. Mr J. told Mrs J. that he would leave her if Sam spent any more time with them. Sam, aware of this threat to his mother’s second marriage, was very attached to her and wanted more of her attention for himself. Mrs J. was under so much pressure from the male rivalry around her that she was becoming physically ill.


The conciliator felt that it would be inappropriate and ineffective to offer Mrs J. and Mr W. a simple bargaining and negotiation method of intervention, without involving other family members who were maintaining or contributing to the conflict. Therefore, work briefly focused on the r61e of each family member and their expectations and feelings about each other’s d e , using a family systems approach. The two step-parents felt simultaneously exploited and rejected as ‘parents’ and ‘non-parents’. The difficulties of their r6le were discussed, particularly the amount of authority that was expected and accepted from Mr J. by Mrs J. and Sam. Sam’s difficulties were compounded by the usual adolescent arguments about clothes and staying out late. He discussed these matters with his father at home and said he felt less of a barrier between them.

The conciliator also helped the family to look at the ways in which communications had become dysfunctional, with Sam taking the brunt of explosive telephone conversations with his mother at one end of the phone and his father breathing over his shoulder at the other end. Mr W. gave Sam emotional permission to move freely between the two households at week-ends and in the holidays, provided that both parents were kept informed of his movements. As his security increased, Sam ceased to tease Jimmy and began to relate to Mr J. in a more adult manner. Mrs J. said that she now felt more supported by her husband, instead of being pulled in different directions by the competition for her affections from Mr J., Sam and Jimmy.

No legal proceedings over variation of custody or access were necessary and solicitors advising each party were satisfied with the agreements reached. There was still no contact however, between Jimmy and his father, as neither seemed motivated nor interested in each other. Mr W. was well aware that Jimmy regarded Mr J. as his father. Conciliation at an earlier stage might have defused some of the unresolved anger and bitterness from the original marriage breakdown which led to prolonged and stressful ‘blocks’ in subsequent relationships. Even at this relatively late stage of intervention, it was possible through brief work with the family network to reduce the tensions considerably and to improve communications, as well as settling some specific issues.

Commentary on case example 2 A family systems approach in this case allowed conciliation to be used as an alternative to contested court proceedings in which the conflict

374 M. Robinson and L. Parkinson

between Mr W . , the boys’ father and Mrs J.. the boys’ mother, would then have polarized and probably intensified. If their solicitors had applied to the court for access to be defined, the parents would have surrendered their parental responsibility to the court and a judicial decision could have been imposed on them. In conciliation, the parents retained their control over the decisions and other members of the family were involved in the decision-making process. Step-parents were included because they had influential rBles in the new family system and therefore an important contribution to make.

The methods used were a combination of such techniques as convening and engaging, re-framing, normalizing, separating spousal issues from parental issues, clarifying rBle expectations, identifying options, negotiating, seeking points of agreement and liaising with solicitors. The work was brief (only three sessions) but communication tasks were agreed, to be undertaken between sessions, so some movement took place between sessions, and members of the family system not only became less stuck but learnt to some extent to manage their interaction in a more constructive way.

The conciliator’s approach was not directed towards spousal issues and personal adjustment as a counsellor’s might have been. The focus of the work is summarized as follows:

(1) Conciliation focused not only on the concrete issues of access times and frequency of visits, but also explored the patterns of communication in the family system and the ways in which dysfunctional communication was preventing the access problem from being solved. Some communication gaps, e.g. between Sam and his father, needed to be bridged, while his contact with his mother needed to be freed from the currents of hostility flowing between his parents. The place of his younger brother, Jimmy in the old and new family systems was also discussed although no issue concerning Jimmy had been referred for conciliation.

(2) Sam was the only person occupying the acrimonious middle ground between the two halves of the divided family, until the conciliator shared it with him. The family accepted the conciliator as a neutrally based mediator, with concern for the family as a whole, and this reduced Sam’s isolation and the load on him as message-bearer. The conciliator’s lack of authority and power was advantageous in gaining the co-operation of a family in which authority and power were major issues. Discussions were based on the assumption that the family’s


problems were normal problems of transition and reorganiza- tion, without any medical connotations.

(3) From Mr W. and Mrs J.’s point of view, conciliation had financial advantages over litigation, as neither of them would have been eligible for legal aid. However, this did not mean that they wanted any contact or co-operation, and the underlying hostility between them was not resolved. It is therefore more realistic and accurate to describe conciliation, as Haynes (1984) has done, as a method of brief intervention directed towards conflict management, rather than as a form of therapy directed towards conflict resolution.

Conclusion

As separation and divorce generally involve varying degrees of mutual loss for the parents and children concerned, we have argued that it is highly relevant to focus on the needs and feelings of individual members of the family as a whole, instead of responding to the needs of individual members in isolation from each other. Responding to unresolved marital issues may ignore the needs of their children, and a straightforward bargaining model risks treating children as inanimate possessions, without considering the rbles they are playing in the split family. Focusing solely on children’s needs may increase parents’ anxiety and guilt and may even reduce parental competence if the worker does not offer help and understanding to the parents themselves.

A family systems approach enables us to conceptualize the changes in family structure and family rbles which families need to negotiate as they move from marriage through separation and divorce, and often to second marriages. Family therapy also provides us with a range of techniques and skills which are applicable to conciliation, although it is important not to imply that divorce is pathological and that families affected by divorce need ‘treatment’. A medical setting or medical model of working, may be perceived as stigmatizing, and may discourage parents from accepting conciliation in this setting, unless they are impelled to do so by acute problems or stress.

The development of interprofessional trust and understanding between the legal profession and those acting as conciliators is particularly important. It is only if such mutual respect is established that those professionals can try to match the psychological and legal processes through which the family passes and thereby attempt to


assuage some of the conflict and bitterness. If this is possible, then what is inevitably a painful process can be accomplished with the minimum of lasting damage to family members.

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Documents

A family systems approach to conciliation in separation and divorce