Mediation has long played an important role in resolving family law matters. Recent amendments to the Family Law Act 1975 (Cth) take this one step further: attendance at family dispute resolution is now effectively a compulsory pre-filing requirement in family matters concerning children.1 A range of merits have been claimed for alternative dispute resolution in the area of family law.2 Prominent among these is the notion that mediation provides a more flexible and less confrontational environment for dispute resolution than the courtroom, with corresponding benefits for vulnerable or unrepresented parties.3
The present article challenges this view. We argue that, rather than removing or reducing the formal barriers that confront vulnerable parties in mainstream legal processes, family dispute resolution - as conceived in the Family Law Act - replicates many of the problems of the courtroom. Indeed, in some ways vulnerable parties fare worse in the context of mediation than they do in litigation, since where barriers to justice exist they are liable to be both exacerbated and masked by the relatively informal nature of the process.4 Our argument proceeds through an analysis of the concept of rationality and the way it is constructed within the facultative model of family dispute resolution. This model is the most widely practised in Family Relationships Centres in Australia under the Family Law Act.5 We begin by looking at the way rationality operates to structure the norms of communication within particular social contexts, drawing on the work of Ludwig Wittgenstein and Jean-François Lyotard (Part 1). We then apply this framework to examine how rationality is constructed within family mediation (Part 2). In particular, we consider how norms of rationality interact with three key elements of family dispute resolution as practised in Australia: first, the principle of self-determination; second, the aspiration of mediator neutrality; and, third, the legislative requirement that parties make a 'genuine effort' when participating in mediation. We conclude that the family mediation context reflects particular norms of rationality, which tend to exacerbate and mask the disadvantages faced by vulnerable parties in legal disputes. As an example of this type of problem, we discuss the impact of rationality on women participants in family dispute resolution, looking at the issues of postseparation gendered inequality and family violence (Part 3). Expectations of party rationality are shown to contribute significantly to the disadvantage that women face in mediation as a result of these issues.
1.0 RATIONALITY AND DISCOURSE
This article deals with the construction of rationality in the context of mediation, with a particular focus on family mediation. It will be helpful at the outset to set out a theoretical framework for understanding what we mean when we say that rationality is constructed. By rationality, we mean, roughly, the condition of thinking or acting reasonably and logically.6 Rational thought and action, in this sense, is thought and action that complies with certain accepted, though not always explicit, explanatory criteria. Our conception of rationality will change depending on what criteria we use to explain and evaluate behaviour. The criteria we use to assess behaviour will be influenced, in part, by social conventions. Those conventions may differ from community to community and perhaps also from context to context within the same social environment. What counts as rational behaviour may depend on the surrounding social context. That is what we mean by the construction of rationality. By the same token, our criteria of rationality may influence the way we interact with social institutions. Rationality is a threshold test that thought and action must meet in order to be considered legitimate in social discourse. It follows that treating a particular type of behaviour as irrational may have serious consequences for people who adopt it. …