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Reforming the Family Justice System
Using a Causal Layered Analysis to Develop a Theory of Change RSD4 Symposium Banff 2015
Michelle Jehn; Diana Lowe, QC; Jessica Spina; Barb Turner, QC
Welcome and Introductions 1
Who are We? What are Our Perspectives?
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Istock: http://www.istockphoto.com/vector/recycling-with-people-and-globe-20759973?st=84ceb3etag: - recycling with people and globe
Although we do not have formal training in systemic design, with backgrounds in social sciences, we are already predisposed to understanding connections in how the world interacts. We are learning as we develop our skills in this field, thinking with our hands
MJ: My background is in Anthropology and human geography, and I currently work as Manager for Literacy and Aboriginal Learning for Innovation and Advanced Education. I often support the ministry by facilitating sessions using Systemic Design and systems thinking.
JS: I am a political scientist by training, and I currently work as the Evaluation Lead for Alberta Innovation and Advanced Education. My teams mandate is to help our ministry understand the real-world impacts of our work.
DL: I am a lawyer, and currently work as Executive Counsel in the Court of Queens Bench. I have 25 years of experience in justice system innovation and reform, and along with Barb, am co-leading the Backbone for the Reforming the Family Justice System initiative in Alberta.
BT: I am a lawyer and currently work in the Resolution and Court Administration Services Division of Alberta Justice and Solicitor General. I have worked in government for over 25 years with a focus on legal reform initiatives, particularly related to family law.
Evolution of the Family Justice System
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Istock:http://www.istockphoto.com/vector/napoleon-and-josephine-published-in-1871-16642905?st=b2b1a48 & http://www.istockphoto.com/vector/the-judgement-of-solomon-33587974?st=2b34d62
So, what do we mean by the Family Justice System?
Traditionally this would be seen as courts, lawyers and legal institutions dealing with divorce, custody, access, support and property matters.
In Canada, the legal tradition relating to family law is actually relatively recent. It is only in the last 40 years that has divorce been accessible in Canada, with the passage of the Divorce Act (1968).
In many ways, this legislation making it possible for parties to divorce, was positive. However, it also led to the legalization of the process for dissolution of marriage, and all of the related issues arising upon divorce or relationship breakdown.
Impetus for Change
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That legalization has meant that the tools of our adversarial legal system have become part of the approach to family breakdown. Unfortunately, many family matters are not being properly resolved, with many cases identified as high conflict. There are issues of cost, delay and lack of public understanding in the current system. In addition, science on brain development demonstrates that unresolved conflict can have significant impact on the healthy development of children.
Reform efforts since the early 90s have focused on the development of programs and services to address family needs. These programs and services have not taken non-legal issues out of the legal processes, but rather have been made available parallel to - and often in connection with - court processes. Dispute resolution, case management, information and education for parents are some examples of the services being made available in the legal system, in response to the issues of family breakdown.
The overall effect has been that the courts are dealing with many matters that are not truly legal in nature. Theres great cost & delay, and indeed the processes often do more harm than good for families.
Why Traditional Approaches Were Not Working
There has been a significant amount of effort on reform of the justice system in Canada and internationally, as well as research initiatives aimed at improving the justice system often characterized as efforts to improve access to justice.
The RFJS is very different from these efforts. We are seeking systemic change to better address the needs of families, and not assuming that more programs and more law - even if it leads to greater access to justice - is the answer.
How did we recognize that the approaches that were being taken werent addressing these issues?
In 2006 a national conference brought together the players in the justice system to discuss research and reforms. The participants celebrated new understandings from research initiatives in Canada and internationally that focused on the public needs, and looked at new developments such as dispute resolution approaches. While there was much to be excited about, during the conference there was a growing recognition and concern that in spite of all of the well-intentioned efforts, the problems were actually worse. This was seen in the growth in self-represented litigants, as well as the high cost of justice and the significant delays still experienced by litigants. We have reached a crisis in the family justice system.
There was a growing recognition of the complexity that we were dealing with and that we needed a different approach. The national Action Committee on Access to Civil and Family Matters grew out of this recognition, and the RFJS is founded on the reports of the Action Committee.
This foundation has enabled us to ensure both that our work is based on a deep foundation of knowledge, and that our work will be focused at the level of systemic change.
Actors of the System Convene
The RFJS is Albertas response to the Action Committee Reports that were released in 2013.
At a Joint Action Forum of the Alberta justice community, to discuss the Action Committee Reports, Justice Andrea Moen of the Court of Queens Bench (with the support of the 3 levels of courts in Alberta), and Assistant Deputy Minister Lynn Varty, (with the support of the Ministry of Justice & Solicitor General) agreed to co-convene an initiative on reforming the family justice system in Alberta.
More recently, the Law Society of Alberta agreed to join as a third Co-Convenor, and Anthony Young QC is the Law Society Co-Convenor.
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The RFJS is grounded in complexity theory, and has adopted a collaborative action approach which has brought together a collaboration of more than 250 organizations and individuals from a broadly defined family justice system. We have intentionally included participants who would not traditionally be considered as part of the justice community, but which we recognize as key members, such as psychologists, social workers, health care providers, educators and financial advisors.
The initiative has established a governance arrangement which brings together 10 sectors who represent the collaborators. An implementation committee that we call the Bearspaw includes the Co-Convenors, staff who support the initiative, Sector Leads, and Chairs of cross-sector Working Groups that are now engaged in innovation labs on specific issues that the broad collaboration has turned its attention to.7
Seeking New Ways
The Co-convenors and staff developed an outcome statement and objectives based on the recommendations of the Action Committee, as well as the recognition of the impact of toxic stress on childrens brains. We took a number of steps to ensure that the collaborators agreed with the outcome and objectives, including surveys, mind-mapping processes, small group work, world cafes. We developed a shared understanding of the governance for the initiative by working together on key elements and modelling the Bearspaw at Workshops. We also worked together to develop prototypes and understand the innovation lab approach that would be adopted to tackle the challenges that had been agreed upon.
Through all of this, we built relationships and confirmed that collaborators agreed on a common vision.
At a workshop on Developmental Evaluation, we were asked to articulate our ToC, and were surprised when we were told that our common vision, outcome statement and objectives (while helpful) were not a ToC. This was an entirely new concept to us, and we needed help to understand and develop this concept for the RFJS.
We were fortunate to turn to the GoA Co-Lab group, and in particular to Michelle and Jessica (and colleagues) who assisted us. 8
Causal Layered Analysis
Approach (use of CLA)
In order to assist the RFJS, we undertook a process with the initiative leads called Causal Layered Analysis .
Why? To better understand the current system, to surface some of the core underpinnings of the family justice system and to help us to see the whole picture, and different perspectives.
This exercise helped to tell the current story of family justice and imagine a possible future for the system.
How? By exploring 4 simultaneous layers of reality, this method allows us to explore all factors and perspectives/beliefs that make the current state.
Litany List of issues, policies in place or gaps, mechanisms and components that describe the system. This is very much a brain storming activity.What are some of the structures and components that make up the current family justice system, what are the issues/problems?Systemic causes What are the issues that families and children face in an attempt to navigate the Alberta family justice system?Consider socialcauses, includingeconomic,cultural, politicaland historical factorsDiscourse/ worldview What dominant narrative legitimates the systemic causesWhat structures or worldviews contribute to them?Metaphor/Myths These are the deepstories, the collective archetypes, the unconscious, often emotive, dimensionsof theproblem or theparadoxFor example: What is the origin myth about the family justice system?
Family Justice System: Litany
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We began by asking the participants to describe concerns about the current family justice system. What we heard for the litany that it isLegalisticNo consistency3rd party decisionsNon-relational & adversarial. It makes families fight more.Expensive Emotional costTime heavy and process laden.Not citizen centered, the lay person doesnt understand.
Family Justice System: Systemic CausesThe law is jurisprudence, the language legalese, the system is designed for a win-lose scenario.
The next layer of the analysis gets at systemic causes. Some of the feedback we heard from the group/ backbone/sector leads:
Lack of view of the child and familyLack in early assessmentPower imbalance, money is involved. The system is daunting.Unrealistic expectations placed on litigants, where quick decisions are wanted. It takes too long to move files through the system.Focus on process versus peopleLack understanding of the system, terminology etc - People feel lost. Emotional and psychological strain.Its a zero sum game. 11
Family Justice System: Worldview
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When identifying the worldview of the family justice system, the conversations began to contain a broader societal influence. This is what we heard:
Marriage happens over time; divorce happens instantly unrealistic expectations;- Divorce can be a quick fix, media shapes our perspectives of this.- People are resilient and want a better life.Solutions need the power of the law.Divorce is a personal failure something no one wants.Children are the responsibilities of their parentsThe judge knows best and the law can be used.
Family Justice System: Metaphor/MythPhoto credit: Istock http://www.istockphoto.com/vector/trojan-war-21781616?st=da3c351
The next layer of the discussion then moved into metaphors:
The system is a highway to hellLawyers as sharks or vampiresCourt can be used as a weaponPeople having to lawyer up
The myth that emerged, was: The court is a battleground and lawyers are gladiators.
Barb To add that change has already been happening on the ground, in pockets as the system players recognize that the current system is not working. As we heard, there have been numerous attempts to improve the system, and there are practices among lawyers which include dispute resolution (mediation), collaborative family law, etc.13
Family Justice System: A New Mental ModelFamilies Thrive
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Sifting between old and new mental models presented active possibilities in how we explored and understood the system. What became a new mental frame for the system, when we spoke to the backbone and sector leads, was:A system of opportunity based on optionsLawyers see themselves differently (not as warriors, perhaps as peacemakers)It starts with our cultureEducation and awareness in schoolDivorce, like marriage is a relationship, all the same parts are there, just rearrangedFamilies are at the centre
ProblemsValuesSystem is based on legal rights, with an adversarial, win-lose approach that is detrimental to children and parentsThe system ignores the impact of toxic stress on children and parents
Capacity The court system is the default, but courts lack the capacity and expertise for resolving family relationship issues
Access The system is expensive and complicated with unequal access to appropriate forms of resolutionLegal language is a barrier which adds to the fear that parents experienceThere is a need for clarity of language and consistency across all geographic locations
FocusParents and system providers focus on legal solutions, not family wellnessKey StrategiesChange ValuesEmphasize community-based resources, with a focus on healthy parents, on strong, healthy relationships between parents, and on childrens needsNeed to inform decisions and approaches with brain science re impact of toxic stress on children
Increase CapacityFocus on resources needed to build on the familys strengths. Provide families with education, tools and resources to maintain healthy relationships, and to resolve disputes Empower parents to exercise personal responsibility and self-determination so that they can make choices together for the well-being of their family
Improve Access Multiple options, multiple access with consistency across all geographic locations: people get to the right place at the right time for the most appropriate resolution for them
Shift the FocusChildren are the lens through which we design the system, with focus on building strong & healthy family relationships. This begins with early education and continues throughout the family justice systemKey OutcomesWorking* Theory of ChangeFamily justice issues are primarily social, relationship and financial, that contain a legal element
AssumptionsChronic conflict leads to toxic stress and negative outcomes for children and parentsEmpowering parents to make early and informed decisions is effective in resolving family problemsSocial, relationship, financial and legal supports help foster stronger, more resilient familiesIf parents strengthen their personal health and their parenting relationship, they and their children are happier and healthierThe public costs associated with unresolved family problems are greater than the costs of supporting families to thrive
ValuesFamilies (parents and children) thrive, even while undergoing changes to family structureTheir first priority is on parenting, healthy relationships and the needs of children and young people
CapacityFamily supports and education resources are in placeParents are empowered to competently address disputes within the family building resilience , co-operative parenting skills and capacity to address and anticipate problems
AccessRestructuring families are aware of and have access to services that are available consistently across AlbertaTo the extent that families turn to legal remedies, processes are simplified
FocusServices are family focused and meet social, relationship, financial and legal needs of families
Family Justice SystemThe public is at the centre of this initiative, and we are committed to engage diverse perspectives including aboriginal, faith-based, immigrant, gender, mental health , addiction & poverty. The public will be engaged in the cross-sector working groups as they work on prototype design, implementation and evaluation. We have intentionally included participants who might not traditionally be considered as part of the justice community but which we recognize as key members of the family justice system, such as psychologists, social workers, health care providers, educators and financial advisors. There are currently 10 sectors engaged in the initiative: Dispute resolution; Legal; Courts; Education & information for families; Education for lawyers, paralegals & law students; Family support; Evaluation & research services; Funders; Government; Alberta Justice & Solicitor General
Revised August 25, 2015*This is a living document which will be updated as we learn.
This new mental model has supported the creation of a Theory of Change. A ToC is the roadmap that articulates or provides narrative to how you imagine change will occur.
The theory in this case is aspirational and moves away from the current system.
Members of the backbone and sector leads have worked to develop this theory of change for the Family Justice System, to help guide and measure progress.
This theory of change is predicated upon the following assumptions that form the new mental model:Chronic conflict leads to toxic stress and negative outcomes for children and parentsEmpowering parents to make early and informed decisions is effective in resolving family problemsSocial, relationship, financial and legal supports help foster stronger, more resilient familiesIf parents strengthen their personal health and their parenting relationship, they and their children will be happier and healthierThe public costs associated with unresolved family problems are greater than the costs of supporting families to thrive
Most importantly, as youll see under Key Outcomes the theory itself articulates that: Family justice issues are primarily social, relationship and financial problems, that contain a legal element. In this new theory, the notion that lawyers and courts are the prime mechanism to address family restructuring, is shifting to include experts and supports that are more conducive to relational dynamics experienced by families. What particularly resonated with participants is the concept that families should THRIVE. This became a guiding value, design goal and lodestone for reforming the family justice system.
It is recognized that the reforms need to be designed with this in mind, and that this concept will need to be embraced by families, all of the participants in the family justice system and society broadly, if real change is going to be possible.
The Key Outcomes that have been articulated are set out in the ToC:ValuesFamilies (parents and children) thrive, even while undergoing changes to family structureTheir first priority is on parenting, healthy relationships and the needs of children and young people
CapacityFamily supports and education resources are in placeParents are empowered to competently address disputes within the family building resilience, co-operative parenting skills and capacity to address and anticipate problems
AccessRestructuring families are aware of and have access to services that are available consistently across AlbertaTo the extent that families turn to legal remedies, processes are simplified
FocusServices are family focused and meet the social, relationship, financial and legal needs of families
Notice that there is no legal jargon here
Leadership supported this approachParticipants were open to try a new process and became increasingly engagedParticipants were flexible and comfortable with emergence in the momentMetaphoric videos provided a way to imagine how change could occurBeing flexible and comfortable with emergence in the moment is helpful, as it can have a positive effect on the project, where rather than force a process, you are helping respond to the needs of the group. Collaborating in the agenda building process was extremely important, to gain commitment and to become champions of the process/methods building trust and mutual understanding.
What Did We Learn?
Going through CLA is not a linear process. Recognizing how participants move from layer to layer, is mainly in language and reflective expression, where language becomes more subjective and less factual, more of a narrative, less quantifiable, more uncertain, less normative, more interpretive.
The power of CLA in developing shared understanding and seeking some of the core beliefs that shape and guide a system subconsciously, is important to get at what might begin to actually change a complex system. Its the difference between understanding the root cause and having an end of pipe solution (or we would say, adding new programs which effectively keep everyone busy re-arranging the deck chairs on the sinking Titanic).
We worked through the CLA with backbone and sector leads, but not with the whole group of collaborators. We were only able to tell them about it and present them with the TOC. We now think it would have led to a greater understanding, if we had worked through CLA with all collaborators.
We were surprisingly able to use video conference technology to carry out the CLA with participants in Edmonton and Calgary, and successfully go through the CLA process.
Theory of Change is valuable and continues to be refined and guide the direction of the working groups. The continued refinement allow the groups to anchor their progress in something tangible that belongs to the whole system.
We have used the TOC to guide further refinement of the prototypes as well as in the selection of the prototypes for the first 3 working groups.
The working groups have begun to meet, and to define the scope of their work. The ToC is critical to ensuring that our efforts are at the level of system change. Each of the groups has met twice, and have begun to form sub-groups. We have observed that it is very easy for them to slip into normal practices of planning programs to complement the existing system as we all know it. While anxious to get their hands dirty in reform initiatives, they have all agreed that they want to achieve systemic change, and that they will benefit from stepping back to work through a Causal Layered Analysis relevant to the specific work that they have undertaken. This will complement the ToC, and will ensure that the groups focus their efforts at the level of systemic change.
Michelle and Jessica have agreed to assist us in this next iteration of the CLA 0process, and we are also exploring a Frameworks process that some of our Collaborators feel will provide a means of engaging with the public on the reform initiatives.