Gender and Justice in Family Law Disputes

Women, Mediation, and Religious Arbitration

Samia Bano, Samia Bano

• Publisher: Brandeis University Press
• Year: 2017
• ISBN:
  9781512600360
• Topic: Jura
• Subtopic: Rechtstheorie & -praxis

Recently, new methods of dispute resolution in matters of family law—such as arbitration, mediation, and conciliation—have created new forms of legal culture that affect minority communities throughout the world. There are now multiple ways of obtaining restitution through nontraditional alternative dispute resolution (ADR) mechanisms. For some, the emergence of ADRs can be understood as part of a broader liberal response to the challenges presented by the settlement of migrant communities in Western liberal democracies. Questions of rights are framed as "multicultural challenges" that give rise to important issues relating to power, authority, agency, and choice. Underpinning these debates are questions about the doctrine and practice of secularism, citizenship, belonging, and identity. Gender and Justice in Family Law Disputes offers insights into how women's autonomy and personal decision-making capabilities are expressed via multiple formal and nonformal dispute-resolution mechanisms, and as part of their social and legal lived realities. It analyzes the specific ways in which both mediation and religious arbitration take shape in contemporary and comparative family law across jurisdictions. Demarcating lines between contemporary family mediation and new forms of religious arbitration, Bano illuminates the complexities of these processes across multiple national contexts.

PART ONE

Mediation and Religious Arbitration in the United Kingdom

1

When Is Mediation Mediatory and When Is It Really Adjudicatory?

RELIGION, NORMS, AND DECISION MAKING

Lisa Webley

FAMILY PROBLEMS—INCLUDING THE BREAKDOWN of formally and informally recognized intimate relationships, disputes about money, property, and children, intergenerational and parent(s)–child conflict, and domestic violence—are among the most common disputes liable to require third-party help (Genn 1999, 2000; Trinder et al. 2014). These problems are often multifaceted and interconnected, and the narrative between the disputants may be highly contested, emotionally charged, and at the heart of individuals’ identity, beliefs, and values. The issues are frequently reframed over time as family members uncouple and recouple, children mature, and the dynamics between the generations shift; additional parties may enter, be the focal point of, and exit the dispute as time elapses (Ekeelaar, Maclean, and Beinart 2000; Ingelby 1988; Davis 1988; Webley 2010a). And it is often difficult for family members to seek support from those closest to them given that the dispute has arisen within kinship groups, sometimes restricting their access to guidance within the family and engendering a reluctance to seek help from a wider circle of support so as to keep family disharmony private from the local community.

It is, therefore, unsurprising that people turn to third-party professionals to seek advice about where they stand, what they should do, and how they may settle their family problems. Not everyone will seek recourse to law, but some will consider it an essential step when children, property, and money are at stake and they feel thoroughly disempowered. Few people will be able successfully to navigate without a lawyer’s help the complex legal provisions and procedural rules that bedevil a family justice system designed for a different age in which legal advice, assistance, and advocacy were largely funded through the legal aid scheme (Webley 2015b). Those who feel more confident of their ability to negotiate with family members may be looking for third-party help to facilitate the negotiation process, with or without reference to law. Where the factual basis of the problem is accepted by all sides, negotiations may center on developing creative, practical, and mutually acceptable solutions that allow for closure. Where the factual basis is in dispute and people’s values and identities appear to be at odds, there is the thorny issue of whose norms are to be applied in pursuit of the resolution. Historically, in England and Wales when the views of professionals were sought, those professionals would assert the prevailing legal norms to reach an outcome (Webley 2015b). Increasingly, as private ordering is championed by the state, the norms to be used may be agreed upon by the parties or overtly or covertly imposed by one or more of the parties or by a third party. The norms may have some relationship to law; they may be personal values or religious and/or cultural norms, and they may be held in common by all concerned, by the parties if not the third party, or not shared by any (Shah-Kazemi 2000). Consequently, the settlement or judgment may not be one that corresponds to current legal precedent and practice. Should the parties be permitted to bargain away their legal rights in pursuit of a settlement that corresponds to their cultural expectations of family life and childrearing? Does society have an interest in a private settlement, and does it have a procedural interest in knowing how the settlement was derived and a substantive interest in the content of the outcome?

These questions will be addressed in later chapters in this volume and from a variety of perspectives. This chapter aims to set the scene for what follows. In the first section of the chapter I seek to uncover some of the common confusions in the lexicon of dispute resolution to provide a platform from which we may interrogate our stance on family mediation (and in later chapters on family arbitration) in an increasingly culturally heterogeneous society and at a time when family mediation has become a mandatory condition for access to the family justice system in England and Wales (introduced by the Children and Families Act 2014, s 10). In the second section, I examine the contested terrain of mediation, the mediator’s role and identity in the family justice context, with reference to mediator neutrality and impartiality. Some conclude that there is a need for a nuanced and developed appreciation of the role of reflexivity in the mediation project and for and by mediators, in place of mediator neutrality, so as to guard against subconscious bias and the subordination of gender and other power dynamics within the mediation environment. This provides a basis for considering the role of mediators and what they contribute to a site of struggle as regards gender, equality, and justice. The third section considers the controversial issue of whose norms should be applied in reaching a decision, taking into account the mediator’s stance, issues of consensual decision making, what interest the state and society more broadly have in privately ordered disputes, and when the (alternative) dispute resolution becomes dispute resolution performed by self-appointed “judges” using a parallel and sometimes covert and subconscious set of norms that are not easily scrutinized, challenged, or appealed. In short this chapter addresses when mediation is truly mediatory and when it is really adjudicatory or complicit in the dominant party’s narrative such that any settlement is not consensual, fair, or just according to the law or purported mediation practice.

Dispute Resolution: Modes, Means, Ideologies

Much of the discourse on (alternative)¹ dispute settlement² conflates a number of key components of dispute settlement such that it can be difficult to ask fundamental questions about the extent to which each mode can deliver fairness. There is often an elision of one or more of the following:

the mode of dispute determination or settlement (court adjudication, arbitration, mediation, third-party negotiation, negotiation between the parties with periodic third-party advice, negotiation purely between the parties, or a combination of these modes); with

the theoretical framework underpinning the mode of dispute resolution (adversarialism, mutualism/consensus, or other); and

the role that third parties may be playing within the dispute (partisan, neutral, or both, facilitator or decision maker, or both); and

the approaches that they are adopting in the dispute (facilitative, evaluative, transformative, adopted overtly or covertly as regards the parties, consciously or subconsciously by the third-party professional); with

the professional affiliation of the third-party professional (lawyer, non-lawyer, other, a range of professional affiliations); with

the norms (and whose norms) to be used in the decision-making process to reach the determination or settlement (law, familial values, cultural norms, religious norms, a combination; shared by the parties and the third party/parties, the parties only, one party and the third party, not shared by any); and finally with

resolution by means of public ordering or private ordering ideologies.

Many of these components interconnect, overlap, and/or map onto other components more commonly than do others; for example, court adjudication is often associated with lawyers acting as partisans (increasingly less so with the rise of self-represented litigants; see Moorhead and Sefton 2005; Williams 2011; Trinder et al. 2014), and court adjudication has been heavily associated with adversarialism (see examples in Lewis 2000, 6–7), although this too is something of a myth in family law cases (see Davis 1988: 47–61; Ingelby 1988, 43–6; Eekelaar, Maclean, and Beinart 2000, 182–89; Webley 2010a). Mediation is most frequently associated with a neutral third-party facilitator, the theory of mutualism or consensus-based settlement, and the ideology of private ordering, acceptance of plural viewpoints, and mutual respect (although there are contrary narratives; see Dingwall, 1988; Greatbatch and Dingwall 1989; Dingwall and Greatbatch 1991; Mulcahy 2001). These overlaps and intersections only add to the level of complexity and the possibility of misrecognition in the assessment of procedural and substantive equality and fairness, by whom and for whom. This is all the more difficult in a context where many family disputes are settled behind closed doors at home, in a community center, in a professional’s office, or in a closed court and when few written records are available for public scrutiny and analysis. In addition, many professionals are now dual or triple qualifying as lawyers, as mediators, and as arbitrators too, and switching between modes, roles, approaches, affiliations, and norms depending on context (Webley 2010a). The aforementioned components are not mutually exclusive, and thus the parties may employ them consecutively or concurrently. It is easy to see how heuristics develop to describe the bundle of attributes associated with different modes of dispute resolution, even if—as we shall see later in this chapter—these heuristics mask great variations in combination and lead to some problematic assumptions about autonomy and justice, fairness and equality.

Perhaps one of the most apparent dichotomies to address is that of adversarialism linked to public ordering via the courts and mutualism linked to private ordering via mediation, because although the dichotomy is rarely expressed in such explicit terms, much of the discourse is constructed through these lenses. Adversarialism in an English and Welsh context assumes a degree of equality of arms between the parties by means of their legal representatives; the latter advocate robustly from a partisan position on their clients’ behalf in front of an independent judge free from bias who then adjudicates, after hearing both sides, by applying legal norms to reach a reasoned judgment that is susceptible to appeal. Adversarialism has been linked to autonomy, “rationality,” and the assertion of a right against another’s position; it is argued to be outcome orientated (see Cockburn 2005) within a context of procedural fairness and has been criticized, particularly in a family law context, as hostile and destructive (see Finlay 1993, 65–69; Milne 1988, 27; cf. Felstiner and Sarat 1998). Consequently, the picture created is one of masculinist competitive lawyers forcefully asserting their clients’ legal rights in a public arena, to the detriment of others within the family, so as to achieve a win at all costs, even if empirical evidence does not bear this out in England and Wales (see Webley 2010a, b; Eekelaar, Maclean, and Beinart 2000; Eekelaar and Maclean 2009; Eekelaar and Maclean 2013; Mulcahy 2006; Trinder et al. 2014). Further, this picture, were it ever true, is fast becoming outdated: court adjudication in even the most frequent of family disputes is becoming a rarity and then one that is dominated by self-represented litigants rather than legally represented parties (nearly two-thirds of all divorces involve a negotiated property and financial agreement rather than an adjudicated outcome; see earlier in the chapter for details of research on self-represented litigants).³ Yet critics of legal professional involvement in family law problems argue that as lawyers are trained in the adversarial paradigm they carry this over into inter partes negotiations too, and consequently recourse to law is always recourse to adversarialism; recent British studies undermine this contention and are suggestive of a much more nuanced approach by family lawyers such that they engage in a range of approaches more akin to those ascribed to mediation (see the following section) than to legal practice (Eekelaar, Maclean, and Beinart 2000; Maclean and Eekelaar 2009; Trinder et al. 2014). There continues to be much debate about the role that law and lawyers do and should play in the settlement of family disputes.

Mutualism or consensus-driven decision making, in contrast, is an altogether more appealing theory, more commonly discussed in the context of peace studies (Barak 2005) and associated more closely with feminism and the ethic of care (Cockburn 2005, 73). Mutualism embodies cooperation between all involved in the dispute, operating from a stance of mutual respect, growth, and development through relationship and negotiation (Barak 2005). It is process focused but designed where possible to give rise to a durable outcome that is acceptable to all involved in the situation (Cockburn 2005, 73, 78). Discussions take place in private, are conducted using a shared, negotiated frame of reference and norms, and are facilitated by a neutral third party acceptable to all those involved in the discussions. Thus it is easy to see why mediation has been linked to mutualism given the seeming similarities between the process (neutral third-party facilitator) and the lack of an imposed set of substantive norms to guide decision making (no imposition of family law as the tool). On the face of it, then, mediation should be able to accommodate a plurality of viewpoints, and it should engender a greater chance of equality and fairness for women and vulnerable parties than does recourse to law, given its links with feminism (assuming recourse to law is adjudication or in the shadow of adjudication), especially if a process founded on mutualism can also assist individuals to learn more about themselves and their family members along the way.

In the following section, I shall consider mediation in more detail in order to examine some of the ways in which mediation may provide a more inclusive mode of dispute settlement for families who do not fit within dominant family ideal-types and whose values and beliefs may not be positively supported by current law and practice. I shall also examine the extent to which a more powerful party may overbear a weaker one in the absence of an adept and reflexive mediator and, further, how a focus on mediator “neutrality” coupled with confidentiality within the paradigm of private ordering may mask subconscious bias and negate some of mediation’s advertised benefits.

The Mediation Professional Project, Equality, and Fairness

Family mediation has been given a range of definitions; most appear to coalesce around a number of key elements: the process is voluntary, flexible, and confidential, and it is facilitated by an impartial and/or neutral third person with the aim of the parties negotiating a consensual settlement to meet their needs (Boulle and Nesic 2001, 4–6; Folberg and Taylor 1984; Davis and Roberts 1998; Mackie 1991; Bartsch 1999, 540). Some definitions of mediation are augmented to take in aspects of mutualism, including active engagement with the importance of mutual respect so as to provide the parties with a developmental opportunity to see conflict and their needs differently (Richards 1997; Foster and Kelly 1996). These augmented definitions, in part, take in some of the differing approaches to mediation (discussed later). Others have preferred to adopt definitions that view mediation as a set of tasks and roles (S. Roberts 1988; Gulliver 1977, 26–31), some of which may be more interventionist than others (Roberts 1988, 144). But at its core, family mediation involves one or more mediators facilitating and/or directing negotiations between the parties (negotiating alone or with their representatives present), which take place face-to-face or with the parties in separate rooms with the mediator(s) shuttling between them. Thus there are many ways of doing mediation, which change the process and experience of mediation quite considerably. Further, as mediation is not a reserved professional act...