CHAPTERS

Non-adversarial processes in family law

Family lawprovides a compelling example of non-adversarial justice in action.

Macfarlane (2005, p 2) argues that "the negative impact of adversarial litigation
and the ensuing crisis of confidence in legal services is nowhere more appar-
ent than in family law practice". The sheer number and special nature of family
disputes has necessitated a rethink as to the operation of the family justice system.
Although there is limited use of the language of therapeutic jurisprudence in family
law (but see Bryant and Faulks,
2007), it is the vulnerable position of children in
family breakdown, a therapeutic jurisprudence-aligned concern, that has mostly
stimulated non-adversarial reforms in this field (see Chapter 2 on
therapeutic
jurisprudence). Changes have taken place to legislation, to court operations,
to legal practice and also to
community-based methods to encourage parental
cooperation, a key principle behind the Australian Family Law Act 1975 (Cth).
Evidencing the non-adversarial nature of the jurisdiction, most family law cases
settle in Australia at least 94 per cent of family law disputes that come before
-

the Family Court are resolved without to judicial determination

recourse (House
of Representatives Standing Committee on Family and Community Affairs, 2003,
para 1.23) and presumably a greater percentage of those that do not reach court
also settle.
The introduction of no-fault divorce has been instrumental to the develop-
ment of non-adversarial processes in family law. In Australia this occurred in
1975. In fault-based divorce the focus
systems, litigant, professional and official
of
attention is inevitably upon the bellicose and distressing process of obtaining
a divorce. With the removal of fault, it has become apparent that the complex,
arcane and prolonged processes created for resolving disputes about the care
of children, finances and division of property after separation are
potentially as
harmful as the end of the spousal relationship itself.

The harm caused by the adversarial legal system

There are two key factors that have driven the trend towards non-adversarial
dispute resolution in family law policy. These are the belief that the adversarial
legal system is unsuitable for family disputes and the need to cut costs and
address frustrations expressed about the family law system. Each of these factors
is explored in more detail here.
The first ideological imperative behind increased
support for non-adversarial
processes in family law is the belief that law is not an effective for the
avenue

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 NON-ADVERSARIAL PROCESSES IN FAMILY LAW

resolution of family disputes. The main claim made against the legal system is its
unrelenting adversarialism, which is viewed as inappropriate for separating fami-
lies (Dewar and Parker, 2000, p 129). Unlike former business associates or parties in

negligence claims, family members must often maintain an ongoing relationship,

particularly when they are parents. The adversarial nature of the system is seen
as destructive of ongoing relationships because it exacerbates conflict between
parties and fosters a win-lose mentality. In contrast, non-adversarial options
such as family mediation are presented as positive alternatives to the adversarial
system, encouraging communication, problem solving and compromise and are
more likely to provide win-win results.
Furthermore, the legal system is seen as particularly harmful to children. Since
the 1970s, there has been a growing concern to protect the children of separat-
ing parents, and a welfarist discourse has emerged in family policy (Neale and
Smart, 1997, p 380). The growth of that discourse has corresponded with a deeper
international understanding of children's rights. In the welfarist discourse children
are perceived as being at risk of being damaged by their parents' failure to manage
their divorce properly (Kaganas and Day Sclater, 2004, p 3). As such, the unmodified
adversarial system caters poorly for children, who are not parties to their parents'
dispute and cannot present their own case. Courts have therefore attempted to
represent children's rights and wishes more directly family court proceedings.
in
Concurrently, processes that encourage parents to agree between themselves have
been promoted because they allow parents to focus on their children's needs rather
than their own conflict. King and Piper (1995, p 86) point out that this view:

[C]onstructs the welfare of the

as dependent upon the mutual trust,
child
co-operation, communication joint responsibility of parents whereas the
and
Anglo-American legal system, based on adversarial procedures, is seen as
almost invariably creating or fermenting parental discord.
The two key pieces of Australian legislation in the past two decades that have
progressively encouraged and then compelled parties to attend mediation as well

as reforming court procedures, the Family Law Reform Act 1995 (Cth) and the
Family Law Amendment (SharedParental Responsibility)Act 2006 (Cth), focus almost
exclusively on disputes over the care of children, because of the perceived danger
posed to children through their parents' use of the adversarial court system.
The second imperative behind the growth of non-adversarial practices in family
law has been the costs of, and complaints about, the running of the family law system.
There have been persistent expressions of disillusionment with the formality, cost
and delays of litigation, and the administrative burden of the family court system
(for a description of these complaints in Australia, see Bagshaw, 1997; Star, 1996,
pp 111-115; Kennedy, 1998; Parliament of the Commonwealth of Australia, 1995;
Parliament of the Commonwealth of Australia, 1992, para 3.4). In the United States,
Canada, Germany, England and Australia, men's groups have been particularly
successful at placing pressure on governments to reform the family law system,
including family processes (Rhoades and Boyd, 2004; Kurki-Suonio, 2000; Arendell,
1995, p 73). The Family Court of Australia has been targeted by men's groups for
being unnecessarily adversarial, biased against fathers and unnaturally influenced
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 NON-ADVERSARIAL JUSTICE

by feminist practices. In the 1980s, this antipathy transformed into violent, some-
times deadly protests against the Court, its officers and their family members (see
C James, 2006). Reform to Family Court processes has occurred as a result. Family
mediation and associated non-adversarial processes have been favoured by govern-
ments because they bring with them the promise of court bypass a cheap way of -

clearing court lists and of reducing long-term spending on the family justice system
Private dispute resolution processes require fewer spatial and personnel resources
than courts, meaning greater numbers of settlements may be achieved for the same
amount of funding, and in less time. There is some evidence that private processes
are favoured by men's groups because they allow for both the personalisation and
the privatisation of the divorce process (Bertoia, 1998).

Court-based processes

Systemic family court reform has been implemented to provide "families and
children with a place where justice is effective and efficient and where their legal,
personal, emotional, and social needs are resolved in a therapeutic and holistic
manner" (Babb, 2008, p 235).

Models of family court practice

The creation of
specialist family courts is a key development in assisting separat-
ing families to reach
satisfactory resolution of their disputes. A central philosophy
behind the operation of a specialist family court is attention to both the psycho-
logical and legal aspects of relationship breakdown. In practice this means the
employment of experienced staff with either legal or social science backgrounds
who will collaborate to assist families. Staff in family courts, including judicial
officers, are appointed for their ability to deal with family law matters through
training, experience and personality (Harrison, 2002).
Specialist family courts can be described as typical problem-oriented courts
(see Chapter 9), yet most literature tends to overlook the connection between
family courts and the problem-solving court movement. Spinak (2008, p 259)
posits that this may be "because the modern problem-solving court movement
was born in the criminal justice system, the historic importance of the broad family
court movement in analysing the problem-solving court paradigm has been less
central than it should be".
In the United Statesnearly 75 per cent of States have specialist family courts
(Babb, 2008). The Family Court of Australia is a specialist family court. Created
under the Family Law Act 1975 (Cth), it is a national court whose focus is solely
upon family matters, mostly connected with the consequences of separation and
divorce. Prime Minister Whitlam (1974, p 4322), when introducing the Bill that
created the Court, explained his vision of the "helping court":
The Family Court will, of course, determine legal rights, which it is bound to do
as a court, but it will do much more than that. Here will be a court, the expressly
stated purpose of which is to provide help, encouragement and counselling to
parties with marital problems, and to have regard to their human problems, not
just their legal rights. Parties will not be driven to the court by their own despair
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 NON-ADVERSARIAL PROCESSES IN FAMILY LAW

as a last resort; they will be

encouraged to come to the welfare and counselling
staff of the court they have a matrimonial
whenever problem, even if they are
not contemplating proceedings of any kind.
Whltlam's speech highlights two central legislation: first, the
aims behind the
Family Court was planned as a place wherefamily problems could
people with
seek assistance at any time, without the need to litigate. Secondly, Whltlam
contrasts the determination of legal rights with the need to solve human problems.
In contrast to traditional courts, the new Family Court did both of these tasks. It
was intended that three key non-judicial services would be offered by the Court -

welfare officers (now known as family consultants) would speak with the parties
and report back to the Court to assist with judicial decision-making; counsellors
would speak with parties to help them with their marriage and personal difficul-
ties; and lawyers within the Court would inform parties about their legal rights
and other community services available (Star, 1996, p 93; see also Mack, 1986,
p 113). This ambitious mixture of services required inter-professional cooperation
on a scale not seen in Australian courts previously, as then-federal Attorney-
General Enderby (1975, p 30) was clearly aware:
The Parliament has provided the tools in the form of this sweeping new law:
I feel sure that the new courts, the legal profession, marriage counsellors and
welfare officers will join together in this new enterprise and make it work.
Foundational judges of the Court, Justices Asche and Marshall (1980, p 31),
described the co-existence of the legal and social science disciplines in the Court
as a "mixture of brimstone and treacle", which many saw as unlikely to succeed.
Court historian Star (1996, p 99) argues that the concept of the helping court is
fundamentally in conflict with traditional common law adversarial thinking
because helping one party perceptions of bias in the mind of the other.
can create
A particularly favoured model of a specialised family court is the unified
family court. This is the model of family court preferred by the American Bar
Association (Belgrad, 2004).Although there are variances in models used, a unified
family court usually specialises in family law matters; has comprehensive subject
matter jurisdiction over the whole range of family law cases, including juvenile
delinquency and child protection; invokes principles of active judicial case manage-
ment; involves the same judge managing and presiding over a case for its duration
in the court; has an array of support services available to litigants; and provides
access to justice in a user-friendly manner (Babb, 2008). Use of unified family
courts is increasing in the United States (Babb, 2008, pp 233-234). The adoption
of a national unified family court model remains unlikely in Australia (Nicholson
and Harrison, 2003) as constitutional limitations make a complete federal family
law jurisdiction problematic (with the States currently having responsibility for
child protection, adoption, fertility treatment and child and youth crime).1There is
evidence that having multiple courts in different Australian jurisdictions dealing

1 Although it should be noted that the State-based Family Court of Western Australia does
have comprehensive jurisdiction for family law matters in that State. Section 41 of the
Family Law Act 1975 (Cth) allows States to establish their own family courts and only
Western Australia has done so.

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 NON-ADVERSARIAL JUSTICE

with separation and child protection issues for the families

same creates a situa-
tion where families and children "fall
through the structural
may gaps between
the two systems" (Kelly and
Fehlberg, 2002, p 66).
Another court model to influence family court structure is the multi-door court-
house, a concept attributed to Sander (1976). Although not
specificallya family law
idea, the holistic nature of the multi-door courthouse has transplanted readily into
this field. The multi-door courthouse is in many the civil
ways equivalent to the
problem-oriented court. It
developed in the 1970s in reaction to widely expe-
was
rienced delays in court the increasing unaffordability of
processes, legal advice,
litigants' dissatisfaction with court processes and a widespread misconception
of the role of the court a legal that would
as
emergency room help parties to
resolve any legal wrong (Ray and Clare, 1985).A multi-door courthouse offers a
range of dispute resolution options within the one building, including conciliation,
mediation, arbitration, an ombudsman and, of course, litigation. Clients initially
see an intake officer, a trained legal specialist who helps clients to analyse their
dispute, educates parties about the options available to them and refers the clients
to the most appropriate service within the court (see Kessler and Finkelstein, 1988,
p 580). According to Stempel (1996, p 362) it is important that the courts
provide
alternative dispute resolution (ADR) services themselves because:
Placing ADR mechanisms under the control of the public sector is a worthwhile
means of meeting the concerns of critics who have argued that ADR can too
easily become a kangaroo court slanted against one of the disputants.
For almost a decade from 1991, the Family Court of Australia
provided court-
connected mediation services. After that time funding for dispute resolution was
moved to the community. Since the 1970s the Court has also provided "concilia-
tion counselling" aimed at reducing "the disruptive
family breakdown effects of
and to provide alternative
an to the adversarial
process by promoting conciliation
in the management of disputes involving children and the
management of prop-
erty and financial matters" (Mack, 1986, p 113). The Court provides conciliation
conferences for property matters.

Procedural reform in family courts

Chief Justice of the Family Court of Australia, Diana
Bryant (2008, p 1) has written
about "a growing international
understanding, in common law countries, of the
need to move away from traditional adversarial trials in parenting disputes".
Reforms in family courts have significantly modified adversarial court procedures.
These alterations have been made in recognition of the
special nature of family
law proceedings, which so frequently
involve first-time litigants, and of the need
to protect children from conflict triggered by drawn-out trial processes. Family
courts have also been influenced by broad-scale civil procedure reforms designed
to modify some of the sharper edges of adversarial
litigation, such as the Lord
Woolf reforms in the United Kingdom in 1999 and the adoption in the United
States of the Federal Rules of Civil Procedure in 1938. Some reforms
have also been
made necessary by the high number of self-represented litigants in the
family
jurisdiction (see Hunter et al, 2002).

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 NON-ADVERSARIAL PROCESSES IN FAMILY LAW

Proceedings in family courts have also been made less formal than in other

civil courts. The most common implemented in family courts

procedural reform
has been the simplification of court forms and documents (see Bridge, 2006, p 192).
The Australian Family Law Act 1975 (Cth) demands that family proceedings
"proceed without undue formality" and are "not protracted" (s 97(3)). This edict
has meant that Australian courts have vigorously experimented with procedural
reforms in make themselves less adversarial. When it was created
an attempt to

in 1976, the Family Court of Australia used small courtrooms that were closed
to the public in order to protect the privacy of litigants. Proceedings in the Court
were opened again in 1983 after concerns were expressed that the Court was
administering justice in an unaccountable and secretive manner (Nicholson and
Harrison, 2003). Between 1989 and 1995 pleadings were introduced as an attempt

to define issues in dispute earlier and to lower costs and disposition times. That
initiative was abandoned too, mostly because the family legal profession was
unfamiliar with this common civil procedure and because new disagreements
were engendered over the process of stating the issues at dispute in family matters
(Harrison, 2007, p 19). Probably the most expensive failed procedural innovation
in Australian family law was the creation of the Federal Magistrates Court in
2000, with the objective of providing "simpler
a and more accessible alternative

to litigation in the Federal Court of Australia and the Family Court and to relieve

the workload of the superior federal courts" (Federal Magistrates Court, 2008,
p 3). By 2008, 92 per cent of the new Court's work was in family law (Federal
Magistrates Court, 2008, p 24). In November 2008, the Rudd government released
a review that found that the existence of two family courts led to confusion

amongst litigants (Attorney-General's Department, 2008). That has resulted in

the disestablishment of the Federal Magistrates Court and the addition of a second
tier into the Family Court of Australia to hear general family law matters at first

instance, with federal magistrates in the Family Court being renamed judges, from
2010 (Attorney-General's Department, 2009).
Cases involving family violence pose numerous challenges for family courts.
Courts must ensure victim safety, understand the effects of violence on victims

and children, assess the veracity of violence allegations (in a non-criminal context)
and determine what should be done about the violence in relation to the issues
in dispute. Family violence is not merely an isolated phenomenon - the most

wide-ranging Australian study yet of violence against women showed that 23

per cent of women who have even been married partnershipor in a de facto had

experienced violence at some relationship (Australian Bureau

time during that
of Statistics, 1996). The incidence of violence is potentially even
family higher in
family law disputes. The Family Court of Australia launched its Family Violence
Strategy in 2004 that provides a number of guiding principles that govern all

aspects of the Court's operations to achieve an integrated and consistent response

to the problem of family violence (Family Court of Australia, 2004-05). As part of
that strategy, The Court released in 2009 a set of best practice principles to provide
decision-makers with practical guidance on handling matters where a notice has
been filed alleging actual or apprehended family violence or abuse (Family Court
of Australia, 2009).However, considerable concern has been expressed about the
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 NON-ADVERSARIALJUSTICE

family courts' ability to deal with cases of family violence, despite recent reforms
(Rathus, 2007; Hunter, 2006; Kaspiew, 2005).

Court processes focusing on children

Out of for the
a concern
wellbeing of children, family courts have modified
of their adversarial many
procedures Many in children's
reforms, espe- cases. of these
cially those relating to a more active role for the family
judge, involve elements of
judicial practice borrowed from the inquisitorial
system (Australian Law Reform
Commission, 2000, para 1.130). Chapter 12 links this more active
the
judicial role with
growth
of managerialism.
The most distressing family law cases often involve serious
child sexual
allegations of
or physical abuse. It is sometimes argued that modified adversarial
court processes are the best deal
way to with such
ing what is in the best interests of the
cases, including determin-
children (Moloney and McIntosh, 2004,
p 75). Non-adversarial case-management approaches have been introduced into
Australian family courts to deal specifically with such known in the
Court of Australia as "Magellan" and
cases, Family
the Family Court of Western Australia as
"Columbus". Magellan, a "world-first experimental project"
is founded
(Higgins, 2007, p 21),
upon the principles of child-centred practice, active case management
imposing strict tirneframes on proceedings, and close collaboration between
State
and federal agencies to share information and support families through proceed-
ings. The program involves the following procedures described
as by Higgins
(2007, p 22):
As soon as practicable after the Court is aware of the
allegations, the Court:
appoints an Independent Children's Lawyer (ICL);
•
considers what (if any) Procedural Interim
or Orders should be made to:
protect the child or any of the parties to the proceeding; and
• enable appropriate evidence to be obtained about the allegation as
ditiously as expe-
requests the intervention of an
officer of the relevant state/
territory child protection authority, and a report on the
to as the "Magellan
allegations (referred
Report").
Both Magellan and its cousin Columbus
have reduced disposition times, increased
settlements and perhaps lessened distress among the children involved (Brown,
2002, pp 324-325; Higgins, 2007; on Columbus,
see Pike and Murphy, 2006).
Independent Children's Lawyers can be appointed
by the Family Court, not to
represent children as such, but to advocate for what
the lawyer believes to be in
the best interests of the child (FamilyLaw Act 1975
(Cth), ss 68L, 68LA).
In 2004, the Family Court introduced
the Less Adversarial Trial (LAT) for
children's cases (this was initially a pilot project in two New South
Wales regis-
tries known as the Children's Cases Pilot
Project: see Harrison, 2007; Hunter 2006).
Since 2006, the Family Law Act 1975
(Cth) has required that all children's cases be
dealt with through this
special procedure (Part VII, Division 12A). Property cases
can use the process with party LAT
consent. involves a strong focus on children,
initial education for parents on children's needs, case management with a single

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 NON-ADVERSARIAL PROCESSES IN FAMILY LAW

judge actively directing, controlling and managing proceedings (s 69ZN (4)), early
provision of information to the court in the form of a questionnaire completed
by litigants, flexible methods of evidence collection including relaxation of the
usual rules of evidence (s 69ZT),writing of family reports by family consult-
the
ants (expert social scientists, who were initially known as welfare officers) after
interviews with the family (s 69ZS),2 and, if necessary, for the family consultant
to give oral evidence to the court. Evaluations of the pilot project suggested that
the process was more likely to promote less acrimonious parental relationships,
that it halved median case finalisation time, and that the availability of judges to
deal quickly with issues that arose helped to minimise distress or risk to children

(McIntosh et al, 2008; Hunter, 2006). Doubts have been expressed about the consti-
tutional validity of family judges exercising non-judicial power or failing to follow
due process in LAT, however Murray (2009) argues that, at least in relation to
children's matters, any constitutional hurdles can be appropriately managed.

Community-based processes
Parties' pathways through the family law system often determine their satisfaction
with their experience, more so than substantive law. Community-based processes
are very important in the Australian family law system. It is to community-based
services, including doctors, counsellors, family support services, family violence
shelters and religious advisers that people experiencing family breakdown
are most likely to turn first. The Family Law Pathways Advisory Group (2001,
pp 15-20) identified a number of systemic factors within the Australian family law
system that made it difficult for separating families to resolve disputes, manage
change and develop workable arrangements for the future within the existing
framework. The report concluded that the family law system was not actually

designed as a system and did not always operate coherently.

Community family support services

Community-based support services to assist families through the sometimes

traumatic process of separation and divorce provided in Australia
are by govern-
ment-funded, not-for-profit and private organisations. Support services
are offered

alongside other dispute resolution processes, both adversarial and non-adversarial,

so as to educate parties and assist them to reach an outcome. Services are also
available to assist with the implementation of agreements or court orders. In the
widest sense, then, family support services can be considered non-adversarial as

they may facilitate agreement or help parties who use court processes.
Counselling is an important family support service. In Australia family coun-
selling is aimed at helping parties to "deal with interpersonal issues" that arise
from separation (Family Law Act 1975 (Cth), s lOB). Day Sclater (1999, pp 180-181)

2 Family reports are the main method the courts use to ascertain the views of children.
An Independent Children's Lawyer, where used, must also put the child's views to the
court.

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 NON-ADVERSARIAL JUSTICE

argues that it is important for any family process to provide a recognition and
an outlet for the powerful emotions that accompany divorce or separation.
Counselling may enable parties to be emotionally ready to reach agreement
through other dispute resolution processes.
The federal goverrunent has established Familya national network of 65
Relationship Centres (FRCs) with the aim of
being "a highly visible entry point
or gateway to a whole service system" (Attorney-General's Department, 2007, p 2).
The task of FRCs is to help separated parents resolve disputes and reach agree-
ment on parenting arrangements outside the court system through child-focused
information, advice and family dispute resolution, parental education as well
as referral to other services. There is an explicit non-adversarial emphasis upon
service provision at FRCs (Attorney-General's Department, 2007, p 1):
In providing family dispute resolution services, Centres should not see them-
selves as merely a process on the way to court. Centres and other family dispute
resolution services should use best practice child focused family dispute resolu-
tion to enable separating parents to resolve their difficulties without the need
to go to court.

It may be that the establishment of obvious and accessible

an place for families
experiencing separation will help to ensure that families in crisis know where to
go. This in turn might lessen the confusion and stress within the system. However,
the effectiveness of these services is yet to be proven.
Post-separation parenting programs are also government funded at a range of
community organisations designed to assist parents to cope with their separation
and understand their children's needs, and help children The
to too. Parenting
Orders Program is targeted at assisting high conflict families to reach parenting
agreements. Children's contact services facilitate contact between children and
their non-resident especially in cases of family violence or child abuse, by
parent,
providing safe "hand-over
points" between parents as well as supervised contact
spaces. The Supporting Children after Separation Program provides counselling,
support groups and education to children whose parents have separated or
divorced.

Community-based alternative dispute resolution in family law

Davis and Bevan (2002) argue that the most significant change to family law since
the 1980s has been the emergence of mediation as an alternative to the formal
justice system and its principal mode of dispute resolution, lawyer-led negotia-
tion. The proliferation of ADR processes in family law has occurred in recognition
of the financial and emotional costs of litigation for family disputes (on ADR
generally, see Chapter 7). Support for private ordering in family law comes from a
liberal belief in the privacy of the family and the right of individuals to make their
own choices free from government intervention (Mnookin, 1985, pp 1017-1019,
1036). Under a liberal philosophy there are many benefits of private ordering for
separating families, including that parties are better able to make agreements that
match their own preferences than judges, that parties are encouraged to work
co-operatively through the agreement-making process, that agreed outcomes
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 NON-ADVERSARIAL PROCESSES IN FAMILY LAW

are more imposed outcomes

durable than and that transaction costs are reduced
through avoiding litigation (Trebilcock and Keshvani, 1991, pp 549-550).
The central form of ADR used in family law is divorce/ family mediation.
It was first introduced into the United States in the 1970s, where it was touted
as the model "reducing conflict, improving communication
for and coparental

cooperation, producing better agreements in less time and expense, enhancing

psychological adjustment for parents and children, and leading to more compli-
ance with agreements" (Kelly, 1996, p 373). By the early 1990s, divorce mediation
had moved from periphery to mainstream in many jurisdictions in the United
States (Benjamin and Irving, 1995). In Australia it was not until 1985 that the first
Australian community-based dispute resolution services opened, in Noble Park in
Victoria and Wollongong in New South Wales, with the aim of providing" acces-
sible, community-based services which assist families to resolve conflict and offer
an alternative to litigation for the resolution of family disputes" (Donnelly, 1986,
p 251). Family mediation was only legislatively introduced into the Australian

system in 1991. In 2006 it was renamed "family dispute resolution". Mediators

are now called "family dispute resolution practitioners". Since 1 July 2007, all
separated parents who go to the Federal Magistrates Court or the Family Court
of Australia seeking new orders in relation to disputes over their children must

attempt family dispute resolution before their case will be heard (Family Law Act
1975 (Cth), s 601(7), with some exceptions, ins 601(9)).
Although early hopes were held for the ability of women to negotiate favour-
able settlements in mediation outside the legal system (Rifkin, 1984), considerable
concern has been expressed about family mediation systematically disadvantaging
women who are forced to negotiate with their former spouses, thereby reinforcing
gender inequalities that exist within broader society (see, for example, Field, 2006;
Alexander, 1997; Bryan, 1993; Grillo, 1991). Unchecked bargaining power within
private processes potentially means that stronger parties can extract advantageous
settlements from weaker parties. Feminist writers remain particularly sceptical
about claims that family violence cases can be fairly mediated (see, for example,
Astor, 1994), despite the statutory exclusion from family dispute resolution for
family violence cases (Field, 2004).
Other ADR processes can also be used in Australia to resolve family disputes.
These include arbitration for property and financial matters (Family Law Council,
2007) and conciliation, where the facilitator is an expert in the subject matter of the

dispute and plays a more interventionist role than a mediator could.

Family lawyers
The role of lawyers in the family law system is important but contested. Lawyer-
led settlement is probably the most common form of dispute resolution in family
law. Research evidence from the United Kingdom (Eekelaar et al, 2000; King,
1999, pp 261-263), the United States (Mather et al, 2001; Sarat and Felstiner, 1995)
and Australia (Kimm, 2008, p 354; Banks, 2007, p 47; Hunter et al, 2000, p 330;

Dewar and Parker, 1999, pp 16-17) suggests that most family lawyers seek to
diffuse conflict, manage client expectations of what they can achieve and regularly
133