Bargaining in the shadow of the law? : the case of family mediation

Almost all family law disputes in Australia are resolved without recourse to judicial determination. Separated families are increasingly directed towards alternative dispute resolution processes to negotiate their own agreements while the state progressively withdraws from resolution of individual family disputes. Family mediation (now named family dispute resolution) is one of the key dispute resolution mechanisms promoted in

Australia, having been compulsory since July 2007. Because settlements in such informal processes are made privately and with minimal outside scrutiny, very little is known about the basis for decision-making in most of these cases. It is unclear to what extent parties in mediation (or any other private dispute resolution process) rely on legal principles.  The aim of the research is to examine the role (if any) which the law plays within

negotiations at family mediation in a) Influencing couples’ decisions to mediate their disputes; b) In the process of mediation; and c) In any agreements that result from

mediation.  The question of the interrelationship between law and family mediation is important because it helps us to understand whether and how law provides protection from exploitation, or a safety net, for parties using state-sanctioned family dispute resolution processes. This question is also important because it helps us to understand how effective family law reform really is.

This thesis uses Mnookin and Komhauser’s concept of the ‘shadow of the law’ to provide a framework for a discussion of the relationship between law and family mediation.

These questions are explored through qualitative empirical research, utilising multiple case studies. The data for the project was collected through interviews, observation and

file analysis at three federally-funded community-based mediation services in Melbourne and Sydney in 2001-02, involving twenty-two case studies.

This thesis was scanned from the print manuscript for digital preservation and is copyright the author.

Author requested conversion to open access 6 Dec 2022.