Fomenters of Strife, Gladiatorial Champions or Something Else Entirely? Lawyers and Family Dispute Resolution

Abstract

Popularly, lawyers are conceived of as relentlessly adversarial. In the context of family law, the model of compulsory family dispute resolution currently practised in Australia is premised upon an adversarial assumption. Implicit is the view that family lawyers destroy their clients and their families. To a lesser extent, it is understood that lawyers can sometimes offer protection to vulnerable parties. Recent reforms to the processes used to resolve family disputes in Australia have increased the need for collaboration between family dispute resolution practitioners and family lawyers. A collaborative approach demands a more sophisticated non-adversarial view of how family lawyers operate than the negative adversarial stereotype allows. To support this position, this article utilises data from a pre-reform study of family mediation to demonstrate how legal advice around family mediation may operate to provide a protective safety net for vulnerable parties forced to negotiate in family dispute resolution. This article is intended to contribute to the growing body of work on the emerging concept of non-adversarial justice. Non-adversarial approaches can be described as a range of processes used to resolve disputes away from the courts and processes used by courts which adopt a problem-solving approach.