Alternative Dispute Resolution and Domestic Violence

Women, Divorce and Alternative Justice

Dafna Lavi

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781351104463
• Edition: 1
• Topic: Derecho
• Subtopic: Teoría y práctica del derecho

Dealing with the interface between the Alternative Dispute Resolution (ADR) movement and the phenomenon of domestic violence against women, this book examines the phenomenon of divorce disputes involving violence through the prism of 'alternative justice' and the dispute resolution mechanisms offered by the ADR movement. This book is the first academic treatise presenting the theoretical underpinnings of the correlation between the ADR movement and divorce disputes involving violence, and the potential contribution of this movement to the treatment of disputes of this nature. Through mapping the main values of the ADR movement, the book proposes a theoretical-analytical basis for understanding the inability of the legal system to deal with disputes of this nature, alongside a real alternative, in the form of the ADR mechanisms.

Part I

Justice in divorce cases involving violence

1 ADR and its alternative justice: in general

1.1 Introduction

The Alternative Dispute Resolution (ADR) movement which, in its entirety, represents a model of consensual dispute resolution, developed in the United States in the 1970s in the area of civil and political law. It began as an attempt to find a practical way to relieve the workload of the courts. Its main feature is the presentation of a new systemic administrative approach that offers mechanisms alternative to those of the judicial process for the purpose of handling disputes and resolving them.¹ A central mechanism, presented as a clear alternative to the judicial process as part of alternative processes, is mediation, a voluntary, confidential process in which a neutral person (who does not have to be a lawyer), serving as a mediator, assists disputing parties in identifying and discussing issues of concern, exploring various solutions and guiding parties towards a settlement that is mutually acceptable to them.²

Alongside this mechanism, there are additional ADR mechanisms, such as arbitration,³ med-arb,⁴ collaborative law⁵ and early neutral evaluation (ENE).⁶

The ADR movement mechanisms, and particularly mediation, are not simply practices acquired through practical training or a reform of the legal system. A study of the ADR movement’s contribution, particularly that of mediation, to society and to law, reveals that it is not merely a matter of dealing with the problem of the judicial system’s workload and that the presentation of this movement’s contribution as being limited to this misses the main point. As is known, the last half of the 20^th century witnessed widespread processes of criticism of the old patterns of social order.⁷ The ADR movement, which broke into the public awareness in the final decades of the century, brought with it new winds of alternative justice and new perceptions and values regarding morals that questioned the justice that was at the basis of the legal system (judicial justice) and also challenged additional secondary values that were part of the foundation of that system. This movement proposes new perspectives of justice, which try to answer the fundamental criticisms leveled at the law in the 20^th century.⁸

This chapter presents the phenomenon of ADR as possessing theoretical depth and as having values and ideas that can compete with the values attributed to the legal system and even to prevail over them at times. In other words, the central assertion is that the values of alternative justice are likely, in many cases, to overcome the values of judicial law and justice and to provide a true answer in places in which the law and its values have failed and judicial justice has been unable to provide relief. This presentation of the ADR movement, as set forth in this chapter, is likely to reflect and to validate the true contribution of the movement to society and law and thereby to contribute to the advancement of the true ADR revolution.

In order to advance this challenge, this chapter will briefly set forth the central values of alternative justice, which are shared by the various ADR mechanisms and which rule over the entire ADR movement: (1) interests-based negotiations and hidden layers of the conflict, (2) respect for the parties’ autonomy and a non-coercive stance, (3) confidence in the parties potential and the potential of the process and (4) the parties as partners with an emphasis on the relationship and on emotions.⁹ Alongside the presentation of each value, its main philosophical roots will be presented, the manner in which it perceives the dispute and its handling of it, as well as an illustration of its expression in the various ADR mechanisms. These values of justice constitute central components of what can be called the jurisprudence of alternative dispute resolution¹⁰ and understanding them assists in forming a broad theoretical perspective regarding the field of dispute resolution.

The mapping of the main values of alternative justice will demonstrate how, alongside the uniqueness and separateness of the ADR mechanisms such as the various models of the mediation process, collaborative law and ENE, they share a common identity and alternative language, composed, inter alia, of the same alternative justice values and theoretical roots that are at their basis. Additionally, this mapping will illustrate how these alternative justice values provide an answer to the central narratives of criticism that developed in the 20^th century in Western culture, with respect to the judicial process and the judicial justice that it produces. In this manner, the ADR movement creates an opportunity for a different kind of social values discourse, by putting aside the judicial process and focusing on replacements for it.

This other social values discourse is very necessary, particularly with respect to difficult social phenomena such as domestic violence against women, as we shall demonstrate in Chapter 2. The understanding of the new alternative language of the ADR movement and its uniqueness, as presented in this chapter, is likely to advance a deep perspective and a method for the resolution of difficult disputes such as divorce disputes involving violence, which the legal process and classic judicial justice, in the opinion of many, has failed to deal with.¹¹ This chapter is general and does not deal with any specific kind of disputes, however a theoretical mapping of the values of alternative justice and language, as provided in this chapter, lays out a theoretical basis for understanding the immanent failures of the judicial system in dealing with divorce disputes involving violence (as set forth in Chapter 2), refutes the bases of opposition to mediation in such disputes (as set forth in Chapter 4) and expands the range of options for structuring a practice of intervention in these difficult disputes (as set forth in Chapters 3 and 5).

In this sense, this chapter is an introduction to the other chapters.

1.2 The values and language of alternative justice

1.2.1 Interests-based negotiation and hidden layers of the conflict

Interests-based negotiation and hidden layers of the conflict is one of the prominent values of alternative justice and constitutes, in and of itself, a critical narrative of the judicial justice produced by the legal system and the judicial process.

1.2.1.1 The background

The striving for justice has since the beginning of time, and in spite of human limitations, been one of the most significant objectives of orderly human judicial systems.¹² Thomas Aquinas stated that carrying out justice in law is to be found in the very carrying out of the law.¹³ Law and justice, so it is asserted, are synonyms and a judge cannot achieve a higher level of justice or allocate rights and obligations in a more just manner than by carrying out the dictates of the law. The role of the judge in the judicial process is perceived as making the determination regarding the competing rights of the parties to a case by applying the relevant law to their case.¹⁴

And indeed, justice is located along this line, according to various scholars, within the law, as an essential part of its being:

It belongs to the same raw material that is available to the judge when he approaches to determine ‘the law’ and, subject to the supremacy of the legislation, he works, and must work, his influence not only on the creation of the ‘ruling’ as part of the general law, but also on rendering a judgment between the litigants.¹⁵

Since the days of Aquinas, justice has assumed many forms, but its main feature has always been, and remains to this day, to keep the law, in the spirit of ‘there is no better and surer justice than the performance and assurance of enforcing the law.’ In brief, it may be stated that the traditional promise of judicial justice was in the implementation (and enforcement) of the law, which is likely to be termed ‘implemental justice.’¹⁶

This model of justice – implemental justice – has always raised many questions. For example, the scholars of legal realism¹⁷ pointed to the failures of this type of justice in view of the fact that as opposed to the formalistic assumption, according to which the correct application of the methods of legal rationalization would produce a clear result,¹⁸ often there is no single one-on-one accommodation of values between the rules of law and factual problems raised in the case.

In effect, the legal realism discourse shook up the perception that the classic judicial justice process is objective and neutral since it is carried out according to universal procedural rules and laws of evidence. The realists pointed out that the legal system contains contradictory, abstract and general rules. It is full of gaps that are not covered by legal rules and there are clashes between norms and principles. The law, therefore, enables various interpretations of the rules and precedents that have been established in case law and all of these are legitimate. Therefore, legal rules are not capable, by themselves, of bringing about a certain result in any given case. At times, more than one legal rule is likely to apply to the case and in other cases, there is no clear legal rule to apply and in any event the judge must apply his discretion and even be creative.¹⁹ Hence, it is apparent that the dete...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Introduction
• PART I: Justice in divorce cases involving violence
• PART II: The criticism of alternative justice
• Bibliography
• Index