The Role of Lawyers and Family Dispute Resolution Practitioners in Family Dispute Resolution Where There is Violence: Reflections on Practice
Creators: name: Richardson, Alice
Publisher: name: RMIT University
Year: 2024
Subjects: classificationCode: 480505
subject: Legal practice, lawyering and the legal profession
classificationCode: 480402
subject: Family law
classificationCode: 480405
subject: Law and society and socio-legal research

description: Appropriate dispute resolution (‘ADR’) can be an effective and efficient way to resolve disputes through the use of processes such as mediation, which involves the use of a neutral impartial third party to facilitate conflict resolution. However, despite its advantages as an informal method of solving disputes, ADR has been criticised for providing ‘second-class justice’ to disputants due to inconsistencies in practice and legislation, and for failing to address power imbalances between parties. Power imbalances can be especially an important consideration in the family law jurisdiction where such imbalances arise due to family violence. Research underpinned by feminist theory has critiqued the strengths and shortcomings of mediation in family law disputes. This research explores the risk of using mediation where there are power imbalances, particularly where one party to the dispute is experiencing family violence.
In the context of family law, mediation is often seen as preferable to adversarial dispute resolution processes (such as litigation) as it incorporates parties’ voices and emotions as they seek to resolve issues in dispute and plan for effective future parenting. Mediation in family disputes permits recognition of the human and emotional dynamics during the breakdown of family relationships and the need for these to be dealt with professionally and skilfully while also paying attention to any power imbalances between the parties.
The form of ADR used in the family law field in Australia is referred to as family dispute resolution (FDR). FDR is led, or managed by, either family lawyers or FDR practitioners (FDRPs). Facilitation of FDR to assure parties’ voices are heard and included in the legal design of post-separation parenting agreements has the capacity to empower the vulnerable. Family lawyers and FDRPs assess risk, refer clients to specialist services and assist both parties to create a sustainable agreement.
This qualitative research project examines the practice of FDR through semi-structured interviews with family lawyers and FDRPs to explore their role in FDR. The research explores lawyers’ and FDRPs’ understandings of their practices and the ways that they have adapted their roles where the client was subjected to family violence. The research also explores the extent to which family lawyers have adapted their traditional role as spokespersons for their clients. Further, the project explores how family lawyers and FDRPs have acted effectively for their clients and the challenges they identified in achieving successful FDR, particularly in cases where parties were affected by a history of family violence.
The research findings will assist family lawyers and FDRPs to clarify and improve their practice working with clients experiencing family violence. The findings in this study demonstrate that family violence remains unacceptably widespread in Australia. Participants agreed that there is room for improvement to practice for both family lawyers and FDRPs and highlighted the need for a national practitioner risk assessment and management framework for identifying family violence. Further, the participants agreed that ongoing family violence education and training, and a collaborative case-based approach between family lawyers and FDRP’s will improve FDR practice, where there is family violence.