The Construction of Rationality in Australian Family Dispute Resolution: A Feminist Analysis

By Field, Rachael; Crowe, Jonathan | The Australian Feminist Law Journal, December 2007 | Go to article overview

The Construction of Rationality in Australian Family Dispute Resolution: A Feminist Analysis


Field, Rachael, Crowe, Jonathan, The Australian Feminist Law Journal


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. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

The Construction of Rationality in Australian Family Dispute Resolution: A Feminist Analysis
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.