Assisting Litigants (What is Forensic Psychology?)

With respect to assisting litigants and others in the legal system, psychologists act in quasi-judicial capacities and also provide therapeutic services.

Quasi-Judicial Roles

Over the past quarter of a century, psychologists have become increasingly involved in a number of activities in which they serve as decision makers for persons involved in the legal process. Psychologists’ involvement in such activities is presumably predicated upon assumptions that their interpersonal skills provide them with abilities that will facilitate examination and settling of disputes. A number of these activities are presented next.

Mediation

In some jurisdictions, psychologists can serve as legally recognized mediators, in which they function in a quasi-judicial role. Mediation is a dispute resolution process that helps persons involved in legal disputes avoid the adversarial process and courtroom litigation. Although there is considerable variability across jurisdictions and contexts, mediation at the most general level involves a neutral person (the mediator) who works with parties to a dispute in order to craft an agreement that is acceptable to them, with the understanding that a return to traditional litigation channels will occur if such an agreement cannot be reached.

Unlike many if not most litigants, parents in custody disputes must have continued contact with each other involving matters of their minor children after the court hearing their dispute has rendered a judgment. Thus, mediation proponents argue that it can be of particular value in divorce and custody proceedings because of its potential to diminish some of the acrimony and emotion that is associated with the adversarial process. Proponents of using mediation in cases of contested custody argue that it has the potential to facilitate settlement of a large number of cases headed for court, speed litigation times, decrease litigation costs, increase compliance with custody agreements, and improve family relationships, including the relationship that the divorcing or separating parents have with each other and their children (Association of Family and Conciliation Courts [AFCC], 2000; Emery, Sbarra, & Grover, 2005). Some, however, have questioned the value of mediation in matters of divorce and custody (see, e.g., Beck & Sales, 2001). In 2005, the AFCC—an interdisciplinary organization of attorneys, mental health professionals, social service professionals, and accountants—published the Model Standards of Practice for Family and Divorce Mediation, which serve as a guide for the conduct of family mediators, educate service recipients about the mediation process and what to expect, and promote public confidence in mediation as a family dispute resolution process.

Parent Coordination

Over the past 15 to 20 years, psychologists and other mental health professionals have taken on a new role in family court proceedings of parent coordinator or special master. According to the APA (2012), parent coordination is a nonadversarial dispute resolution process that is court ordered or agreed on by divorced and separated parents who have an ongoing pattern of high conflict and/or litigation about their children… [and] is designed to help parents implement and comply with court orders or parenting plans, to make timely decisions in a manner consistent with children’s developmental and psychological needs, to reduce the amount of damaging conflict between caretaking adults to which children are exposed, and to diminish the pattern of unnecessary relitigation about child-related issues. (p. 63)

Parent coordinators typically are appointed only in the most challenging cases involving divorced parents who experience enduring high conflict surrounding the caretaking of their children (AFCC, 2002; Johnston, Roseby, & Kuehnle, 2009). Parent coordinators generally have responsibility for resolving ongoing and day-to-day disputes that may develop (e.g., decision making and conflicts regarding education, health care, visitation, and social matters), while the court retains the right to rule on more significant matters (e.g., changes in parenting time, visitation and legal decision-making authority, relocation issues). All commentators agree that serving as a parent coordinator is particularly challenging, given the level of conflict that is inherent to all cases, the hybrid role that is assumed by the professional, and the myriad regulatory and professional bodies that might consider the work of the professional (see, e.g., Coates, Deutsch, Starnes, Sullivan, & Sydlik, 2004; Kirkland & Sullivan, 2008; Sullivan, 2008).

Not surprisingly, the legal authority for parent coordinators, their rights, and their responsibilities varies across jurisdictions (Sullivan, 2008). Recently, however, at least two organizations have provided important direction to psychologists serving in this role by publishing practice guidelines. In 2005, the AFCC published the Guidelines for Parenting Coordination, the purpose of which is to provide direction to professionals, jurisdictions, and educational institutions regarding (1) appropriate parent coordinator practice; (2) the parent coordinator’s ethical obligations; and (3) educational, training, and experience qualifications for parent coordinators. Similarly, in 2012, the APA published the Guidelines for the Practice of Parenting Coordination, the purpose of which is to “describe best practices for ethical and competent functioning in this unique role” (p. 64).

Treatment and Intervention

Much of the work of psychologists in the legal system involves treating those within it, including victims and offenders.

Crime Victims

By definition, virtually every crime has a victim. Research and clinical experience show that crime victims can experience a range of physical and psychological responses to the event, ranging from transient distress and discomfort to more enduring mental disorders, such as posttraumatic stress disorder (Karmen, 2010). Working with victims is a growth area within forensic psychology. Indeed, all states in the United States have enacted crime victim legislation, most of which provides for funding of mental health treatment services.

Despite the stark reality of the large number of crime victims at any point in time, with the exception of work focusing on victims of interpersonal violence, rape and sexual assault, and child abuse (Briere & Jordan, 2004; Cutajar et al., 2010; Jewkes, 2002; Kilpatrick, Resick, & Veronen, 1981), surprisingly little psychological research exists regarding the impact that offending has on victims more generally. That we know so little about the efficacy of interventions designed to assist victims’ responses to and manage adverse psychological outcomes is particularly surprising given the ubiquitousness of criminal victimization in our society. Accordingly, it is important that greater attention be paid to evidence-based approaches that aim to assist victims of crime.

Offenders

Much of the work of forensic psychologists involves assessment and treatment of offenders. An expanding body of empirical literature demonstrates that offender rehabilitation can significantly reduce recidivism (see Gendreau, Little, & Goggin, 1996; Gendreau & Ross, 1979; Losel, 1995; McGuire, 2002). Contemporary approaches to offender rehabilitation have been drawn from the Psychology of Criminal Conduct (PCC) and the Risk-Needs-Responsivity (RNR) principles that are derived from the model (Andrews & Bonta, 2003). The PCC, which was developed by Andrews and Bonta in the 1980s and refined over time, is a theory concerned with individual differences in criminal behavior, making it a particularly useful guide both for assessing the risk of recidivism and for planning rehabilitation attempts. The PCC provides directions for the assessment and treatment of offenders that are embodied in the principles of RNR. The risk principle directs that the degree of intensity of treatment programs for offenders must be matched to an offender’s level of risk (Simourd & Hoge, 2000). Therefore, more intensive intervention is provided to those assessed as being a high risk for reoffending. Conversely, lower-risk offenders have been shown to derive better outcomes from a less intensive level of service and intervention. The needs principle posits that, to reduce recidivism, treatment must focus on the offender’s “criminogenic needs” (i.e., the characteristics that contribute to the individual’s offending). The responsivity principle considers factors that may affect or even impede an offender’s response to interventions. Two general types of factors affect responsivity. One involves factors internal to the individual including, for example, intellectual functioning, self-esteem, and motivation level (i.e., idiographic components). A second type involves external factors such as staff characteristics, therapeutic relationships, environmental support, and program content and delivery (i.e., nomothetic components). Taken together, offender rehabilitation programs that are based on the RNR principles have been found to significantly reduce reoffense rates among offenders (Andrews & Bonta, 2003).

The PCC and the development of the RNR model have formed the basis for many of the gains made in offender rehabilitation (Ogloff & Davis, 2004). Using these principles, rates of reoffending can be reduced by as much as 30% across different types of offenders (i.e., sexual offenders, violent offenders, and those who perpetrate interpersonal violence).

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Assisting Litigants