Perceptions of Gender Power in Family Dispute Resolution

Written by Nurit Zubery, winner of the FairWay Resolution Anne Scragg Scholarship 2019

Introduction
The introduction of mandatory family mediation in many western countries over the past four decades resulted in much gender-based criticism. Feminists warned that family mediation shall disadvantage women who are not yet strong enough to negotiate directly with their husbands.1 Fathers’ rights groups claimed fathers are systematically discriminated against in favour of mothers. These decades have seen a gradual shift in the traditional roles of men and women in society and in the family. We are in the midst of what some scholars call the ‘gender revolution’.2

The proposed research aims to examine the subjective perceptions of members of fathers’ rights groups who have been through an FDR process and compare them with women’s perceptions of the process.

This essay shall provide a brief summary of the scholarship around the relevant issues at the core of family mediation. It will touch briefly on the scholarly views on power-imbalance in mediation and its relationship with the idea of mediator neutrality. It will then look at the allegations of both feminist scholars and the fathers’ rights movement against family mediation. Finally, it will explore the meaning of the governing principle of the “best interests of the child” and how it correlates with the interests of the parents.

Power imbalance and mediator neutrality
Power imbalance between parties in mediation has always been one of the most debated and controversial areas in dispute resolution scholarship and produced a vast number of articles and opinions. The difficulty stems from the fluid, changeable, relational and contextual nature of power, which makes it difficult, some say impossible, to even diagnose the dynamics accurately.3 In her 2004 article, Bernadette Rogers summarises the views of leading scholars and mediators, both the theoretical views and the practical ‘how to’ approaches.4 These views range from interventionist approaches which encourage the mediator to actively balance parties’ power (e.g.Moore), through the idea of empowering the parties to balance their own power (e.g. Boulle, Acland), or attempting to maximise parties’ control of the mediation (e.g. Astor and Chinkin).5 Ostensibly, any mediator’s attempt to balance power may affect their neutrality, which led Astor to urge mediators to abandon the idea of mediator neutrality altogether.6 The question of power imbalance in family mediation is particularly complex7, due to the differences between men and women, as discussed in the next section.

‘Mediation disadvantages women’ - the Feminist View
The relationship between family mediation and feminism is interesting in its duality. Feminist scholars acknowledged that mediation is associated with ‘feminine’ and feminist values, such as: focusing on relationships, promoting empowerment and autonomy, empathy and caring and the rejection of hierarchical power dynamics.8 Furthermore, most feminist scholars acknowledge the fact that the legal system works through hierarchical and masculine mechanisms, which often silence women and ignore their needs.9 However, despite these benefits, many feminist scholars warned against dangers for women in family mediation, both at the individual and the institutional levels. The concerns revolved around gender power-imbalance, the privatisation of what should be public and the need to negotiate directly without legal representation.10 These concerns were rooted in feminist research from the 1970s and 80s, which found some inherent differences between the values of men and woman, especially around conflict, relationships and decision-making. This research identified the focus of men on individualism, autonomy and rights-based justice, compared with the focus of women on affiliation, relationships and empathy-based justice.11 These differences led feminist thinkers to question women’s ability to bring enough power and a sense of entitlement to the negotiation table. In order to test these assumptions, a considerable body of research was conducted in the 90s, resulting in consistent findings of high levels of satisfaction among women with both the process and outcome of family mediation (men’s satisfaction levels were lower).12 Joan Kelly, one of the prominent mediation researchers, wrote: “women in custody and divorce mediation have reported the mediation enabled them to have a voice and express their views, and they perceived that they had equal influence over the terms of the agreement.”13

‘Mediation discriminates against men’ - the Fathers’ Rights Movement
The phenomenal rise of the Fathers’ Rights Movement in many Anglo-European countries is traced back to the 1980s and seen by some scholars as a backlash to the success of the feminist movement.14 The main allegation of the movement was that fathers are discriminated against by the justice systems which favours women as custodians. Extensive research into the ideology and influence of Fathers’ Rights groups, revealed the significant role the movement played in shifting legislation from a model of sole-custody to a model of shared-custody.15 The common rhetorical devices used by various groups include: demanding equality; claiming victim status; selective use of statistics; fusing the interests of fathers with those of children; and warning against the dangers of ‘lone motherhood’.16 A 2019 scoping review of 52 studies of fathers’ rights groups found that most researchers were critical of the motives behind fathers’ claims, and their arguments.17 Some of the research reviewed found that: “Fathers’ rights discourse and activism are condemned as a regressive attempt to reinstate patriarchal privileges, derail ongoing efforts to fight violence against women, and delegitimize policies aimed at countering structural gender inequalities in society “.18 However, other research, though critical of their methods, found that the movement has a role in supporting fathers at difficult times.19

Richard Collier, who studied the phenomenon extensively, offers a more complex perspective on the movement. Collier argues that the success of the movement has to be seen in context of the complex social changes happening in our societies. Changes in the classic model of the family and changes in the model of fatherhood and the expectations from fathers. He asserts that “the greater prominence of fathers’ rights politics can be understood as one aspect of a complex renegotiation of men’s role as parents”.20 Collier urges us to see that alongside an opposition between men and women’s interests “there are surely other occasions where powerful commonalities of interests can exist”21 and post separation contact may be one of them.

The Best Interests of the Child
The Care of Children Act 2004 cemented the idea that “The welfare and best interests of a child in his or her particular circumstances must be the first and paramount consideration…”.22 Section 5 of the Act lists the following principles that must be considered: safety, parent’s
responsibility for decisions, cooperation between parents, continuity, relationship with both parents and with extended family and preserving child’s identity and culture. These principles should guide any process or decisions made about the child at separation. This law reflects the shift that has been happening in western countries over the past 40 years from sole custody to joint custody.23 Parkinson explains that this shift is part of a transition towards a model where both parents are actively involved in the life of their children after separation.24 At the background is an evolution of the fatherhood concept towards more emotional closeness and active involvement.25
During the past three decades, a considerable amount of research was done on what model aligns with the best interests of the child, with data overwhelmingly supportive of joint custody (or in its PC name: ‘shared parenting’). In 2017 a conference of the leading experts from around the world was held in Boston to decide whether shared parenting is the model that maximises the ‘best interests of the child’. The results were unanimously supportive of the shared parenting model, with a minimum of 35% of time allocated to a parent, even in situations of high conflict between the parents.26 The experts agreed that the research is conclusive and proves that children benefit from shared parenting even in such situations.27

Conclusion
Our era is undoubtedly experiencing a shift in men and women’s roles in society and in the family. This transition period is naturally characterised by birth pangs, making it uncomfortable and at times painful for both women and men. The family mediation environment is often where this pain is most expressed and felt.

We know that in most cases, the best interests of the child are for shared parenting. We know the process of mediation entails some feminine characteristics. We know that research shows that men are less likely to enter willingly into a mediation process.28 The same research points to a difficulty in fully engaging men in the mediation process.29
The proposed research shall explore the experiences of men compared with women and aspire to identify problem zones. It will endeavour to infer whether changes are required in order to encourage all parties to be fully engaged, leading to more parent cooperation post mediation
which would maximise the welfare of children.
 

About Nurit Zubery, recipient of the 2019 FairWay Resolution Anne Scragg Scholarship

I was born and raised in Israel, lived through four wars and served in the Israeli army for two years as a medic instructor. I studied law at Tel-Aviv University and worked as a lawyer in the areas of litigation, commercial and employment law, prior to moving to NZ in 1999.

 Over the past 20 years, I owned and managed two successful businesses in NZ. While in business, I became very passionate about business excellence and progressive business leadership and was a student at the Icehouse’s Owner Operator Programme for four years. I was proud when my company, SP Blinds, became a finalist in the Westpac Business Awards 2014 in the Strategy and Planning category. 

After selling my business last year, I turned to the area that has been my secret passion for some time, mediation. I studied at the Massey University Dispute Resolution Programme just before it closed and then started an LLM at the University of Auckland with the intention of doing a research thesis on a mediation related topic.

I am utterly excited for the opportunity to contribute the best of my abilities to the field of mediation, that has become very close to my heart.
 

1 Note: discussion about situations where domestic violence is involved is beyond the scope of this paper.
2 Frances Goldscheider, Eva Bernhardt and Trude Lappegård “The Gender Revolution: A Framework for Understanding Changing Family and Demographic Behavior” (2015) 41 (2) Population and Development Review, 207.
3 Ilan Gewurz “(re)Designing Mediation to Address the Nuances of Power Imbalance (2001) CRQ 19(2).
4 Benadette Rogers “power in Mediation” (2004) 6(9) ADR Bulletin 169.2
5 Above at 169-171.
6 Hillary Astor “Rethinking Neutrality: A Theory to Inform Practice” Part 2 (2000) 11 ADRJ145 at 150-153.
7 Rachael Field “Mediation and the Art of Power (Im)balancing"(1998) 12 QUT Law Journal 264.
8 Martha Lichtenstein “Mediation and Feminism: Common Values and Challenges” (2000) 18 (1) Mediation Quarterly 19.
9 Rachael Field “Using the Feminist Critique of Mediation to Explore “The Good, The Bad and The Ugly” (2006) 20(5) Australian
Journal of Family Law 45 at 54; Janet Rifkin “Mediation from a Feminist Perspective: Promise and Problems” (1984) 2 Law and
Ineq. 21 at 22-23.
10 Martha Lichtenstein n 1 at 20-21; Rachael Field above at 56-78; Trina Grillo “The Mediation Alternative: Process Dangers for
Women” (1991) 100 Yale L.J. 1545.3
11 Martha Lichtenstein n 1 at 23-24 referring to Carol Gilligan In a different voice: Psychological Theory and Women’s
Development (Harvard University Press, Cambridge, 1982); Jennifer J Halpern and Judi McLean Parks “Vive La Difference:
Differences between Males and Females in Process and Outcomes in Low Conflict Negotiation” (1996) 7 (1) Int J Confl 45.
12 Joan B Kelly and Mary A Duryree “Women’s and Men’s Views of Mediation in Voluntary and Mandatory Mediation Settings”
(1992) 30 (1) FCCR 34. Joan B. Kelly “Power Imbalance in Divorce and Interpersonal Mediation: Assessment and Intervention”
(1995) Mediation Quarterly 13(2) 85.
13 Joan Kelly above (1995) at 85.
14 Michael Flood “Backlash: angry men’s movements” in SE Rossi (ed) The battle and backlash rage on: why feminism cannot be
obsolete (Philadelphia, PA: Xlibris Press 2004) 261 at 271.
15 Richard Collier “Fathers’ rights, gender and welfare: some questions for family law” (2009) 31 (4) Journal of Social Welfare
and Family Law 357 at 358; Flood above at 266.
16 M Kaye and J Tolmie, ‘Discoursing Dads: The Rhetorical Devices of Fathers’ Rights Groups’ (1998) 22 Melb ULR 162 at 163.
17 Jonathan Alschech and Michael Saini “Fathers’ Rights” Activism, Discourse, Groups and Impacts: Findings from a Scoping
Review of the Literature” (2019) Journal of Divorce and Remarriage, 60(5) 362.4
18 Alschech above at 367.
19 Alschech above at 367.
20 Collier, note 13 at 357.
21 Richard Collier and Sally Sheldon “Father’s Rights, Fatherhood and Law Reforms – International Perspectives” in Richard
Collier and Sally Sheldon (eds) Fathers’ Rights Activism and Law Reform in Comparative Perspective. Oxford, UK: Hart 2, at 9.
22 Care of Children Act 2004, s4 (1).
23 Patrick Parkinson “Forty Years of Family Law: A Retrospective” (2015) 46 (3) VUWLR 611.5
24 Above at 620.
25 Above at 619.
26 Sanford L. Braver and Michael E. Lamb “Shared Parenting After Parental Separation: The Views of 12 Experts” (2018) Journal
of Divorce and Remarriage, 59(5) 372.
27 Sanford above at 381.
28 Richard Fletcher and Jennifer StGeorge “Practitioners’ understanding of Father Engagement in the Context of Family Dispute
Resolution” (2010) 16 (2) Journal of Family Studies 101 at 103.
29 Fletcher above at 103.