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Professional development programs for private legal practitioners and family dispute management practitioners - June 2003

Synopsis

Final evaluation reports

Introduction

In 2001, the Australian Government Attorney-General's Department called for tenders to design and conduct two professional development programs, one for legal practitioners and one for other professionals who provide dispute resolution assistance to separating or separated families. The successful tenderers were Griffith University Law School, for the legal practitioners program, and La Trobe University, for the family dispute management practitioners program. The Institute of Arbitrators and Mediators was commissioned to evaluate both programs.

The programs were designed and implemented during 2002-03. This paper is a synopsis of the evaluation reports for each program.

The programs were known as Changing the Face of Practice for family law practitioners and Children in Focus for mediators, conciliators and counsellors. The aim was to improve the knowledge, skills and ability of these professionals to assist separated parents to resolve their differences so that family separation arrangements focus on the needs of the children and do not inflame any conflict between the parents.

Key findings of the evaluations

Both programs were generally very successful in achieving their aims and participants were more child-focussed after attending workshops than when they started. In addition, the participants gained a greater awareness and knowledge about the factors associated with disputes over children and of their own skill levels and areas that could be implemented in their practice.

The evaluation of Changing the Face of Practice (Program A) revealed that 77.5% of family lawyers who attended the professional development program could identify one or more significant changes to their practice 6-12 months after the event. The single most significant change to their practice nominated by participants was to educate parents on the impact of conflict on children. The participant profile was predominantly female, specialising in family law for some years and working for private firms, legal aid or a community legal centre.

The evaluation of Children in Focus (Program B) for counsellors and mediators showed that 91% of respondents nominated one or more significant changes to their practice as a result of attending the program. These changes included a range of specific strategies including interviewing or consulting children and providing feedback to parents. The participant profile was predominantly female, over 40 years, with over half being counsellor/therapists and about one third being trained mediators.

The number of participants differed markedly between the two programs. Although both programs were promoted well, and in a similar way, Children in Focus attracted over 800 participants, while less than 200 legal practitioners attended Changing the Face of Practice. In retrospect, it is clear that workshops are not the preferred method of learning for legal practitioners and work needs to be done to identify a suitable skills training methodology prior to promoting any future programs for legal practitioners.

Multi-disciplinary teams were involved in the design and presentation of both programs. There could have been more sharing of information and collaboration between both programs. The evaluation reported that as each program targeted separate professions, some participants expressed concern about a 'them and us' attitude. The programs provided information about other professionals' roles in working with separated parents and changed attitudes to being in favour of collaboration and referral and other means of primary dispute resolution. The evaluation recommends future training retains a mix of expertise from lawyers and the social sciences and that some joint programs are held to assist practitioners from different professional groups to be able to work together in the best interests of the child.

Each program had identifiable objectives developed between the Attorney-General's Department, the program contractors and the evaluation consultant. Children In Focus achieved seven outcomes. Changing the Face of Practice achieved seven out of eight outcomes.[1]

Both programs produced a range of material and resources including promotional material, videos, website, workshop materials/manual and research material. This material reflects current research that highlights that it is not divorce that affected children the most but ongoing high conflict between the parents.

Background

The Family Law Act 1975 encourages people to use primary dispute resolution to resolve matters in which a court might otherwise make an order. The Act ensures that children receive adequate and proper parenting and that parents meet their responsibilities for the care, welfare and development of their children. Legislation alone cannot be expected to improve family dispute management practices that focus on the best interests of the children.

For this reason the Government has continued to support, through funding approved counselling and mediation organisations under the Family Law Act, the development of best practice models of family dispute management that better accommodate the best interests of children. In addition, this specific program builds upon the awareness, knowledge and skills of relevant professionals such as:

• legal practitioners who have an important role in dispute diagnosis, management and referral, as well as in direct negotiation, conferencing and advocacy, and
• mediators, conciliators, counsellors and other social science/mental health professionals who, with respect to child-related issues and disputes, are in a particularly strong position to assist directly in the resolution of differences between separated parents.

Summary of Children in Focus

Overview

Children in Focus was aimed mainly at private and community-based mediators/conciliators and counsellors who were working in the area of family dispute resolution. The program also attracted a number of legal practitioners who had developed specialised skills in family meditation and conciliation.

The program attracted over 800 participants and inspired a large amount of interest both in Australia and overseas. Some of the major papers arising out of this program were published in the April 2003 and October 2003 editions of the Journal of Family Studies. Details of the Children in Focus program, including references to videos and other material produced for the program, are available at the website www.childreninfocus.org.

The program was delivered between May and October 2002 through a series of symposia and workshops in each of the capital cities and in Newcastle and Coffs Harbour. Six to 12 months after the workshops ended, a follow up study was conducted. Evaluation reports were also generated after each symposium and workshop. Those reports, an interim report, the final report and this synopsis make up the suite of evaluation reports.

Program objectives

The Children in Focus program sought to improve the capacity of mediators, counsellors and other practitioners, who work to facilitate family dispute resolution, to:

• better understand the individual, couple and systemic factors associated with entrenched disputes over children
• assist separating and separated parents to affirm their shared and ongoing responsibilities as parents and to manage their conflicts in ways that put their children's interests first
• assist clients in high conflict, who might traditionally seek resolution through litigation processes, to find ways of acting in the best interests of their children, to the extent that they are able
• educate separating and separated parents about the legal paramountcy of the best interests of the child and about the emotional, relational, financial and legal consequences for their children and themselves of pursuing litigation
• seek to integrate into the dispute resolution process the children's experiences of their parents' conflict and separation, and their needs relevant to the family transition
• collaborate more effectively with lawyers and other professionals associated with the dispute, to protect and promote the best interests of children, and
• recognise better the kinds of factors and issues which may militate against a facilitated dispute resolution process and suggest the need for third party decision-making.

Children in Focus was a very useful program for professionals who work with parents in conflict to help convince parents about the need to focus on their children. Some 91% of respondents nominated at least one significant change to their practice as a result of attending the program. In addition, the workshop style presentation was an appropriate method to use for this group of professionals. Attendance at each of the events was higher than expected.

The program was delivered to a combined audience of 827 registrants[2], which exceeded the target by 327. The symposia and workshops were very well received and frequent comments were 'excellent', 'exciting' 'professional' and 'great work'.

The symposia and workshops were found to impart knowledge, skills and achieved attitude change. To this end, the program's broad aim of promoting better dispute management practices that focus on the needs of the child among key practitioners in the field was achieved.

The program objectives (listed above) centred on the child focused approach and each objective contained general and specific criteria in relation to knowledge, skills and attitude change. Each of those measures was met, in the great majority of cases by over 90% of participants attending the symposia or workshops. Impact was still felt six months after participants attended the symposium or workshops.

What contributed to the success of Children in Focus

As a result of the evaluation overall, the factors found to have contributed to the success of the program were:

• a strong commitment to quality by the program team
• a strong belief by members of the program team that their responsibility was to convince participants about importance of including the needs of children in the dispute resolution process
• an experienced team of multi-disciplinary presenters at the top of their field who were able to combine practical knowledge and skills with the latest research
• the use of an international draw card in Dr Joan Kelly who, with Dr Judith Wallerstein, was the first to research formally the impact of separation and divorce on children in the United States, and has continued to be a leading figure in divorce related research and mediation since the late 1970's
• a good management team led by a senior consultant experienced in managing large projects
• a well thought out stimulating, challenging and targeted set of requirements for the project devised by the Attorney-General's Department (a conclusion of both the Children in Focus team and the evaluation consultant), and
• an external, participative evaluation process in operation from the outset which was designed to keep the program on course and to provide prompt feedback about deliveries at the conclusion of each event.

What could be improved if this program were offered again

The program team offered the following comments about what could be improved if the program were to be offered again.

The program was developed as a hierarchy where the symposium was meant to attract a generalist audience and the greatest numbers. This was to be followed by Workshop 1 which was more skills orientated, then Workshop 2 for the development of advanced skills for practitioners who already work with children. During the course of conducting the program, however, the Children in Focus program team found that this hierarchical design was unsuccessful. With no pre-requisite attendance requirements, presenters could not be certain about the level of knowledge and skills of those attending the workshops and this caused some frustration.

The program team also felt there was an under-estimation of the amount of management and administrative resources required to run the program nationally. This posed financial constraints which affected a number of matters such as the choice of venues and support for the presenters. The few negative responses in the questionnaires were about the venues. Complaints were made about the furniture, the lighting, air conditioning and the technical difficulties affecting presentations.

The program team also felt that the evaluation and program teams needed to work together more closely so each could better understand the other's needs and expectations.

Summary of Changing the Face of Practice

Changing the Face of Practice was conducted in all capital cities and a number of regional centres. The program aimed at encouraging family law practitioners to consider their role in assisting both the court and the client to focus more on the interests of the children involved and less on the fight between the parents. A component of this program, therefore, involved facilitating participant discussions aimed at reconciling the practitioner's duty to the client with their duty to the court in the face of the court determining what is in a child's best interests. It was agreed in advance by all concerned that it would be a challenging task to deliver a successful program on this subject to this group of professionals. Insofar as the design and delivery of the program was concerned, however, participant feedback indicated that the program was generally successful in meeting its objectives and useful to those who attended. The greatest challenge turned out to be attracting legal practitioners to attend a program of this nature.

Changing the Face of Practice aimed to assist relevant legal practitioners to acquire the beliefs, attitudes and knowledge they need to be able to:

• better assist clients and the courts to determine what course of action is in the best interests of the child
• know what role they can play in supporting the children's interests when the parents are in conflict because of the separation
• know what constructive means of dispute settlement are available, and where and how to find them
• work together with the other party's legal representative to facilitate negotiation and agreement about a mutually satisfactory outcome for separated parents that is in the children's best interests in both the short and longer term
• work directly with an unrepresented parent to facilitate the negotiation and agreement about a mutually satisfactory outcome (for separated parents) that is the children's best interests in both the short and longer term
• make constructive use of their role as legal advisers when clients are involved in dispute resolution sessions facilitated by a neutral third party
• know when and where to refer clients to other disciplines for appropriate post-separation assistance, and
• recognise that skill development in this area requires a commitment to ongoing improvement through learning in practice and professional education.

This was a useful program for family lawyers who attended with co mments such 'informative' and 'excellent' common from the participants. Furthermore, three-quarters of the participants could identify one or more a significant changes to their practice 6-12 months after the event.

Eight program objectives (listed above) centred on the child focused approach were developed. Each outcome contained general and specific criteria in relation to knowledge, skills and attitude change. Six of these objectives were met and most participants left the workshops with more knowledge about the hugely detrimental effects of conflict on the children and where to go to for help in managing this conflict during the separation process.

The program was delivered in each of the capital cities and a number of regional centres to a combined audience of 173 participants. This fell well short of the target range (670-960) set by the program. Of those who did attend, approximately 94 (54%) were private practising lawyers and the balance, 79 (46%) from Community Legal Centres and Legal Aid.

Despite some negative statements from participants, principally on the level of content and the lack of tools and techniques gained, the participants were found to be considerably more child focused at the end of the workshops than when they started.

The program team decided that development of the CD-ROM would be a useful way to augment the material in the training manuals and provide practitioners with an effective way of obtaining information. The CD-ROM design is based on the original objectives and utilises all the material researched and generated from the deliveries.

What contributed to the success of Changing the Face of Practice

As a result of the evaluation overall, the factors found to have contributed to the success of the program were that:

• presenters from the two main disciplines (law and social science/psychology) were involved, which gave participants an insight into the services provided by agencies such as Relationships Australia and provided another perspective in this field
• the main presenters were experienced, inclusive and engendered good interaction with the participants
• throughout the program, the team were open to change and did so by rescheduling and modifying the delivery format to improve the program - changes were also made to the presentations on receipt of progress reports from the evaluation consultant
• a variety of delivery methods including experiential, informative and self-reflective exercises were used - the deliveries were supported by a video (which was later made available to participants), a pamphlet (Consider the Children) and a workshop manual
• an external, participative evaluation process in operation from the outset which was designed to help keep the program on course and to provide prompt feedback about deliveries at the conclusion of each event
• the venues were very acceptable and there were no complaints about that or the food, and
• the workshop discussion around the difficulty for lawyers in discharging their triple duty - to the client, the court and the child - in practice within the adversarial system was useful to two-thirds of the participants (with the remaining one-third looking for more concrete direction as to how to discharge this triple duty).

As indicated above, despite an intensive promotion campaign for workshops conducted in all capital cities and some regional centres, the total number attending was fewer than 200. It would appear, therefore, that the delivery of workshops is not an effective way of offering professional development to legal practitioners in this subject area. Other professional development strategies will need to be considered in future to engage lawyers who may be identified as needing to improve their ability to be child-focused in family disputes.

The practical difficulties for legal practitioners in discharging duty to the client and the child led to some negative comments from participants who claimed that there was insufficient guidance on these issues from the workshops. Related to this were the factors considered by participants as obstructing the child focused approach but which were largely out of their hands. Any such program in the future would need to include some tools to assist here.

Participants also indicated their need for skills in de-escalating conflict. In a future program, this would ideally be provided by a contribution from the presenters from the social sciences (in this case from Relationships Australia).

As a result of having to reduce the workshop to one day to attract numbers and having eight objectives to cover in the workshops, there was often little time to develop some issues in depth or to impart skills.

The time frame (of less than 12 months) for the program was too short. There was not enough time to successfully integrate into the various legal systems (including the Continuing Legal Education system) which was needed to successfully market the program.

There were difficulties with various aspects of the evaluation. Some of these arose from misunderstandings about the process and some from a failure to work more closely as a team. In future, closer collaboration between the program team and the evaluation consultant is desirable, with the latter providing more detail about the evaluation, its role and benefits.

From the evaluation perspective, there were too many objectives and criteria to measure. These could have been shortened and overlap reduced or criteria clustered better. Clearer guidance could have been given to the Department on this point by the evaluation consultant.

Recommendations

The evaluators state that there is a need for further courses or training in child focused practice, from the evaluation of both programs Children in Focus and Changing the Face of Practice. This could take several forms but it would appear that two types of programs were called for. In the first place there was a need for continued separate work with both counsellor/mediators and lawyers to deal with their individual professional needs. The two programs have shown that some joint initiatives between the two groups to bridge the evident gaps between them are also crucial if they are to work together in the best interests of the child. This issue is dealt with in more detail in the evaluators' recommendations which are cited as follows.[3]

1. In relation to counsellor/mediators, a clear theme emerging from the initial and impact surveys was the request by participants for general refresher programs or for extended training. Many participants pointed to the value of the updated research findings provided by the Children in Focus team which improved their own knowledge but also gave them information to pass on to their clients. For some, the move into child inclusive practice was in its infancy and further training was needed.
2. For the lawyers there was a need for further courses that built on the training from this project. Essentially the focus of Changing that Face of Practice was on knowledge and attitude change and the next step would be to increase the skills component. Operating in an environment constrained by the adversarial system, lawyers needed skills in matters such as de-escalating conflict and handling the particular demands of negotiating child focused outcomes. The expertise of the Children in Focus team is well placed to provide this training. In the evaluators' view, such courses would require a careful mix of expertise from the social sciences and innovative, experienced, practising family lawyers.
3. The third initiative would be to have some joint programs between lawyers and counsellor/mediators. Both claim to have negative experiences in dealings with the other and a need exists to breakdown the barriers between the two professions. There was a lack of understanding of the perspectives of the other and even of knowledge of services offered, especially by lawyers. One possibility would be to run a symposium/workshop in which the first day was a joint session for counsellor/mediators and lawyers followed by a workshop handling the individual needs of the two branches of family dispute management. The joint session would overcome the 'them and us' concern expressed by a number of participants in the Children in Focus program.
4. Family lawyers who participated in Changing the Face of Practice were looking for practical solutions on the constant dilemma on how to discharge their duty to the client, the child and the court. There is now an urgent need for detailed research to find out (a) how legal practitioners currently accommodate their duty to assist the court to consider the best interests of the child in family law matters, (b) what sort of help would assist them to better discharge their triple duty, and (c) what it would take to engage legal practitioners generally in professional development aimed at assisting them to be more child-focused in family law matters.
5. There is a need for further courses or training of lawyers in child focused practice. Essentially the focus of Changing the Face of Practice has been on knowledge and attitude change and the next step would be to increase the skills component. Operating in an environment constrained by the adversarial system, lawyers need skills in matters such as de-escalating conflict and handling the particular demands of negotiating child focused outcomes. It seems that workshops are not the preferred method of learning for lawyers to develop skills. More work needs to be done to find out what best suits them and how skills training can be carried out.
6. One objective not met in Changing the Face of Practice was the role of lawyers in dispute resolution sessions by third parties. This topic raises the issues of relationships with the counselling/mediation professions and the need for joint initiatives between the two groups to bridge the evident gaps between them. This is crucial if they are to work together in the best interests of the child.
7. Both programs (Changing the Face of Practice and Children in Focus) will require a careful mix of expertise from the social sciences and innovative, experienced, practising family lawyers. Attracting sufficient numbers of lawyers to any further programs will need careful research. While such a program is relevant for lawyers employed by Legal Aid and Community Legal Centres, the focus should be on private practitioners who have to implement the child focused approach in a wider range of situations, such as defended residency and contact cases. In these cases, the potential to lose the focus on the child is heightened.