CHAPTER 8 Non-adversarial processes in family law Family law provides 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 ntimber 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 recourse to judicial determination (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 systems, the focus of litigant, professional and official 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 avenue for the 124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). Assuch, 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 in family court proceedings. 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: [Clonstructs the welfare of the child as dependent upon the mutual trust, co-operation, communication and joint responsibility of parents whereas the 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 (Shared Parental 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 125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 States nearly 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 126NON-ADVERSARIAL PROCESSES IN FAMILY LAW asa last resort; they will be encouraged to come to the welfare and counselling staff of the court whenever they have a matrimonial problem, even if they are not contemplating proceedings of any kind. Whitlam’s speech highlights two central aims behind the legislation: first, the Family Court was planned as a place where people with family problems could seek assistance at any time, without the need to litigate. Secondly, Whitlam 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 can create perceptions of bias in the mind of the other. 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).! There 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. 127NON-ADVERSARIAL JUSTICE with separation and child protection issues for the same families creates a situa- tion where families and children may “fall through the structural 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 specifically a family law idea, the holistic nature of the multi-door courthouse has transplanted readily into this field. The multi-door courthouse is in many ways the civil equivalent to the problenr-oriented court. It was developed in the 1970s in reaction to widely expe- rienced delays in court processes, the increasing unaffordability of legal advice, litigants’ dissatisfaction with court processes and a widespread misconception of the role of the court as a legal emergency room that would 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, Pp 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 effects of family breakdown and to provide an alternative 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). 128NON-ADVERSARIAL PROCESSES IN FAMILY LAW Proceedings in family courts have also been made less formal than in other civil courts. The most common procedural reform implemented in family courts 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 an attempt to make themselves less adversarial. When it was created. 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 a “simpler 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 or in a de facto partnership had experienced violence at some time during that relationship (Australian Bureau of Statistics, 1996). The incidence of family violence is potentially even 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 (amily Court of Australia, 2009). However, considerable concern has been expressed about the 129NON-ADVERSARIAL JUSTICE 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 a concern for the wellbeing of children, family courts have modified many of their adversarial procedures in children’s cases. Many of these reforms, espe- 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 judicial role with the growth of managerialism. The most distressing family law cases often involve serious allegations of child sexual or physical abuse. It is sometimes argued that modified adversarial court processes are the best way to deal with such cases, including determin- ing what is in the best interests of the children (Moloney and McIntosh, 2004, p75). Non-adversarial case-management approaches have been introduced into Australian family courts to deal specifically with such cases, known in the Family Court of Australia as “Magellan” and the Family Court of Western Australia as “Columbus”. Magellan, a “world-first experimental project” (Higgins, 2007, p 21), is founded upon the principles of child-centred practice, active case management imposing strict timeframes 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 as described 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 or Interim 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 expe- ditiously as requests the intervention of an officer of the relevant state/ territory child protection authority, and a report on the allegations (referred to as the “Magellan 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 (Family Law 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 knownas 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 consent. LAT involves a strong focus on children, initial education for parents on children’s needs, case management with a single 130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), the writing of family reports by family consult- ants (expert social scientists, who were initially known as welfare officers) after interviews with the family (s 69ZS)/ 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 are provided in Australia 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 10B). 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. 131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 government has established a national network of 65 Family 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 an obvious and accessible 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 ata range of community organisations designed to assist parents to cope with their separation and understand their children’s needs, and to help children too. The 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 parent, especially in cases of family violence or child abuse, by 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 froma 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 132NON-ADVERSARIAL PROCESSES IN FAMILY LAW. are more durable than imposed outcomes 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 for “reducing conflict, improving communication 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, in s 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 settlementis 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NON-ADVERSARIAL JUSTICE encourage clients to settle. For example, Eekelaar et al (2000, pp 113, 184) found no excessive or even any noticeable zeal to interfere in the conflict between parties among the family solicitors they observed in the United Kingdom. Instead, they found that family lawyers consciously made an effort to reduce tension between parties, regularly encouraged parties to discuss matters and provided a significant amount of practical support and reassurance to clients, in addition to legal advice. They found that lawyers sought to align their clients’ expectations of what they could achieve in their case with what the lawyer thought would be achievable in court (Eekelaar et al, 2000, p 98). In this way clients were dissuaded from fighting what the solicitor considered an unwinnable fight and were encouraged to settle. Critics of family lawyers argue that they are too quick to use court processes and that their negotiation style is too adversarial. Hunter et al (2000, Pp 332-334) found that the Australian legal aid and private family solicitors they interviewed did use court processes to facilitate settlement. Hunter and her co-researchers attribute the low confidence among family law solicitors in the community-based mediation process not to a lack of enthusiasm for settlement but to a preference for court-based dispute resolution processes. Galanter (1984) describes the same phenomenon as “litigotiation’”’. He posits that litigation is actually used as a tool for settlement of disputes, with the threat of court encouraging parties to make a deal and to bring legal principles into out-of-court negotiations. That could be described as an aggressive, or even adversarial, form of negotiation practice Family lawyers’ central role in the resolution of family disputes establishes them as prime targets of critics of the traditional adversarial system (Davis, 1988a, P 85). Despite most family lawyers practising in a non-adversarial manner, they are assumed to be part of the adversarial culture of law, and as such are discour- aged from involvement in family disputes. These assumptions can be observed in the family law policies of the English (Lewis, 2000), United States (Fineman, 1988, p 752) and Australian (Hunter, 2003) governments and in the views of family law disputants (Batagol, 2008), This negative conception of family legal practice has been instrumental in ensuring government support for, and client attendance at, private dispute resolution processes. Neale and Smart (1997, p 383) argue that “mediation [is] promoted by policy-makers and mediators alike on the grounds that it provides a necessary foil to the ‘bad’ adversarial lawyer”. Lawyers working around family mediation The “unbundling” of legal services, where the client is in charge of selecting which services their lawyer will perform for them, isan important aspect of contemporary family law service delivery (Mosten, 1994, p 423). One of the unbundled services that family lawyers can provide is advice to clients who are attending dispute resolution processes, such as mediation. Cooper and Brandon (2007) contend that the role of the family lawyer in this capacity will differ according to whether their client is involved in a facilitative or advisory process. Legal advice can assist clients negotiating in mediation to understand the framework in which they can settle their dispute themselves. The Harvard model of principled negotiation 134NON-ADVERSARIAL PROCESSES IN FAMILY LAW explicitly encourages negotiators to understand and use their “BATNA” (best alternative to a negotiated agreement) as the measure against which they should assess the fairness of any offers made to them in negotiations (Fisher, Ury and Patton, 1991, p 106). A party who knows and uses their BATNA - the best they would get under law if they were to go to court - gains bargaining power over the other party. That centralises the role of legal advice in ensuring a fairer negotiating process (Batagol and Brown, 2009). Legal advice around family mediation may be particularly important to assist vulnerable negotiators. Field (2004) advocates a model of family mediation to help victims of family violence negotiate fairly, which involves access to independent legal advice before, during and after mediation. Batagol (2008) has demonstrated how legal advice can operate as a protective safety net for vulnerable negotiators forced to participate in family mediation (see Chapter 3 for a discussion of some of the problems faced by victims of family violence participating in restorative justice-based mediation processes). In Australia, despite the importance of legal advice, family law legislation does little to encourage legal advice around family dispute resolution. There appear to be some obstacles in the way of lawyers and family dispute resolution practitioners working together to assist clients attending dispute resolution (see Rhoades et al, 2008). Collaborative practice/law One of the most exciting developments in the family law field in the past decade has been the growth of collaborative practices, including collaborative law. Collaborative law is a dispute resolution process developed in the 1990s in Canada and the United States (see Shields, Ryan and Smith, 2003, pp 31-34). Collaborative law is a lawyer-led process, but collaborative practice can involve a range of professionals, including lawyers, psychologists, child-specialists and financial counsellors. Parties to collaborative practices sign a contract (known as the “disqualification agreement”) that if the dispute proceeds to litigation, the lawyers will cease to act for the parties and new legal representatives will have to be found. The aim of collaborative practice is to negotiate without the threat of litigation. Itis a response to the criticism of lawyers’ negotiation style, marshalling court processes to bring about settlement. Collaborative practice is based on the idea that the threat of litigation can undermine the productive negotiation process by injecting adversarial pressures (Lande and Herman, 2004, p 282). Collaborative law has been challenged for placing too much value on individual autonomy over objective fairness (Murphy, 2004). Ardagh (2008, p 245) maintains that collabora- tive law may be a way for the legal profession to recapture business lost to ADR practitioners. Use of collaborative practices is growing in Australia (for example, see Pollard, 2007) and has been piloted in the United Kingdom since 2006 (HM Government, 2005, p 24). Successful uptake of collaborative practices depends on the existence of a fair degree of trust and respect amongst local family lawyers and other profes- sionals. The Family Law Council (2006, para 10.1) has argued that collaborative 135NON-ADVERSARIAL JUSTICE law processes will complement the services already available in the post-reform Australian family law system, especially for property disputes. Government funding of family legal services Limited government funding available for family law services has necessitated development of non-adversarial practices to stretch the legal aid dollar further (Dewar, Giddings and Parker, 1999, p 45; Hunter et al, 2000, pp 219-221). In Australia legal aid commissions have developed conferencing processes that are modelled on mediation and use lawyers as an integral part of the process. In England and Wales government funding for non-adversarial family processes shifted from family mediation in the late 1990s, which was judged to be unsuccess- ful (Davis et al, 2000), to the Family Advice and Information Networks program in 2003, where specially trained family lawyers meet individually with clients to give practical support and tailored information, including legal advice and representation and referrals to other appropriate services. The program evalu- ation found, however, that it did not significantly change the nature of family solicitors’ legal practice, as many solicitors felt they were already engaged in applying best practice principles (Walker et al, 2007). The report suggests that a gateway service provided by non-legal agencies, such as the Australian FRCs, may be more effective. Education and training of family lawyers Changes in family law practice have led to calls for reform in the education and training of family lawyers (see also Chapter 16 on implications for legal education generally). The Family Law Education Project is aimed at reshaping university teaching of family law. It aims to expose law students to the interdisciplinary, non-adversarial, personal skills-based nature of family practice (O’Connell and DiFonzo, 2006). It was created by a group of American professionals out of concern that family lawyers are “dismally” prepared for the nature of family legal practice. That project has been criticised for failing to recognise the limited role of law schools in preparing students for practice, for misunderstanding the career expectations of law students and the difficulties faced by law schools in providing a family law specialisation (Bala, 2006). Best practice guidelines for family legal practice have been developed by the Family Law Council and the Family Law Section of the Law Council of Australia (2004), by the United Kingdom-based Law Society (2006) and the American Bar Association Section of Family Law (2006), among others. The aim of these docu- ments is to outline, for experienced and newly qualified family lawyers alike, as well as clients, a standard of sound professional practice for family law matters. Conclusion Many family law systems, including Australia’s, are now best described as “non- adversarial’. Yet few links have been made between the family justice system and other fields that could also be described as non-adversarial, such as problem- 136NON-ADVERSARIAL PROCESSES IN FAMILY LAW oriented courts and therapeutic jurisprudence. Not only is litigation discouraged in the family law system and settlement typical, but a range of support services has been developed to assist families to resolve disputes and deal with the consequences of family breakdown. Most family lawyers practise in ways that diffuse conflict and encourage settlement. Within family courts, there have been significant modifications to traditional adversarial procedures, mostly upon the insistence of the principle that children should not be harmed by their parent’s ongoing conflict. Many challenges remain: making sure that families do not fall in the gaps between federal and State family jurisdictions; ensuring the fairness of private dispute resolution processes; achieving cohesiveness within the family law system; finding the right balance between legal and non-legal service provi- sion after separation; and providing support to vulnerable family members within court systems, including those affected by family violence. 137