Family Law Mediation: Process Imbalances Women Should be Aware of Before They Take Part

Abstract

There is an ever increasing emphasis on using mediation to resolve family law disputes.  Mediation is generally seen as a better form of dispute resolution for family matters because, amongst other things, it is considered to be a more flexible, less costly and less time-consuming dispute resolution option, which also allows for the emotions of the parties to be recognised and addressed. What needs constantly to be kept in mind, however, is that the two parties to a family law mediation, usually a man and a woman, do not necessarily, nor even perhaps often, meet on truly equal terms. Power imbalances are perhaps the biggest problem for women in family law mediation, especially power imbalances that result from the perpetration of domestic violence against them. There are, in addition, a number of process imbalances with which women must contend. The focus of this article is on some of these process imbalances. In particular the article addresses the repercussions of the confidential nature of mediation, issues relating to the skills of the mediators, and issues relating to voluntary participation in mediation. The treatment of issues here does not purport to be an exhaustive analysis of the potential difficulties that may arise for women in mediation as a result of process imbalances. Rather the aim of the article is to contribute to raising the awareness of family law dispute professionals about the reality of women's experience in mediation. This is done in the hope that as women are increasingly pushed towards mediation for the resolution of their family law disputes, professionals in the field will advise women about their participation in the process responsibly and appropriately.