The “Outcome” Fallacy

1. The “Outcome” Fallacy Is the “resolution” in Family Dispute Resolution an Illusion? Wayne Nugent 2012

2. Is history simply repeating itself? • In 2006 approximately 95% of presenting cases had existing court/consent orders/agreements. • In 2012 approximately 90% of presenting cases have existing agreements. • What does this tell us? Wayne Nugent 2012

3. How do we measure success? • Ask any Practitioner how many agreements/parenting plans they write out and what do they say? Wayne Nugent 2012

4. Sweet success! And the numbers to prove it. “General studies of family mediation identify high levels of success, in the sense of parties reaching mediated settlements. The Family Court’s latest available report indicates that 72% of it’s matters are resolved through mediated agreements.” (Boulle 2005 p344) Wayne Nugent 2012

5. What was the intent of the Family Law Act? “To improve the outcome for children” (Hansard 8th December 2005) Wayne Nugent 2012

6. The parental conflict outcomes paradox. • Most return cases demonstrate similar, if not the same, conflict characteristics that they presented at their previous attempt at FDR. • What is clear is that an agreement does not, in itself, change the environment in which the children live. • In short, it does not necessarily “improve the outcome for children”, but simply prolonged their experience of living in a world in which, anger, fear, blaming and disrespect segments their lives into separate packages and plays tug-of-war with their loyalties, their self-respect, and their potential to form lasting and meaningful relationships. Wayne Nugent 2012

7. Why do we ignore what we know? • “Some studies show more short term compliance with mediated agreements than with other procedures; however, over the long term, the differences are not usually significant.”(Schellenberg 1996, p188) • “In children’s matters circumstances change and mediated parenting plans are seldom able to cope with new phases in the children’s or parents lives, and longitudinal studies show high attrition rates in these situations” (Boulle 2005, p344) Wayne Nugent 2012

8. Whose Needs? • “Human needs are at the centre of all conflict and it arises when an individual’s significant needs are not met.”(Brandon & Robertson, 2007, p17) • “A key aim of mediation is to address the needs of the parties. By focusing on the needs all parties are able to express themselves and are more likely to come to a resolution that dovetails most needs, thus producing agreements that reflect those needs.” (Brandon & Robertson, 2007, p87) Wayne Nugent 2012

9. Diversion in mediation as a resolution strategy (Common methods) • Focusing on unmet needs • Separating the people from the problem • Using education as a means to elicit an agreement • Focusing on something other than the relationship dynamics • Avoiding emotionality • Intellectualising what is essential an emotional disposition • The structure of the intervention Wayne Nugent 2012

10. Focusing on the what’s diminishes the importance of the why’s! “If the proposed solution to individual and social suffering bypasses the causes of individual and social conflict, it is not likely to work for very long. It may treat a symptom, but it does nothing to the roots of the disease.” (Damasio, 2006, p267) Wayne Nugent 2012

11. The What’s of identity! “people were likely to respond to questions generating identity conclusions that were informed by the well known structuralist categories of identity; needs, motives, attributes, traits, deficits, resources and so on.” (Epson & White from Madigan 2011, p36) Wayne Nugent 2012

12. Why the Why’s? “These structuralist identity conclusions provided a poor basis for knowledge about how to proceed in life” (More Madigan) They misinterpret the essence of how we translate our identity into meaning: “Our intentions and purposes, values and beliefs, hopes, dreams and visions, and so on” Wayne Nugent 2012

13. Are we blinded by outcome? “Once you have accepted a theory and used it as a tool in your thinking, it is extraordinarily difficult to notice its flaws. If you come upon an observation that does not seem to fit the model, you assume that there must be a perfectly good explanation that you are somehow missing. You give the theory the the benefit of the doubt….” (Kahneman 2011, p277) Wayne Nugent 2012

14. Why do we argue over time? In the emotional context we imagine connecting with our children every day, even when that connection is not a one-on-one event. We smell the bathwater and the wet towels as we walk down the hallway and we are reminded that they are close at hand. We trip over a toy; wonder how they managed to get vegemite on the lounge room ceiling; we hear the faint giggle or complaint through the bedroom door three hours past bedtime; we pick cocopops from the margarine. Wayne Nugent 2012

15. What can we give our clients “I know no safe depository of the ultimate powers of the society but the people themselves, and if we think of them as not enlightened enough to exercise that control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion” (Thomas Jefferson) Wayne Nugent 2012

16. Thank You! Characters courtesy of Rebekah Nugent Wayne Nugent 2012