Patriarchy at the Table: The Role of Gender Dynamics in Mediation

In 2006, amendments to the Family Law Act 1975 (Cth) introduced mandatory mediation for family law proceedings involving children. The objective was to promote affordable access to justice by resolving disputes before they reached the courts. However, the process of mediation has been criticised by feminist legal scholars who argue it is wilfully blind to the nuances of gender dynamics and patriarchal influences that inform power dynamics between disputants and the mediators that claim impartiality. I write this essay as a law student who has been subject to family law proceedings and has experienced first-hand the subtle power imbalances of gender dynamics within the litigation process. I apply a feminist legal theory approach to this question and argue that the impact of gender bias on mandatory mediation in family law proceedings is multi-faceted and extends beyond the gender dynamics of individual parties to encompass:

(i) masculine and feminine ideals of justice;

(ii) the role of societal ideologies of gendered behaviour in mediation; and

(iii) the myth of the impartial mediator.

Together, this tripartite of bias creates a system in which mandatory mediation results in gendered injustice and impedes the rights of women in family law litigation.

I. Masculine vs Feminine Ideals of Justice

To understand how gender bias exists within Australia’s legal system, it helps to understand Descarte’s pluralist theory of gendered thought. In short, the legal system exemplifies norms of objectivity and rationality — ideals deeply associated with traditionally masculine qualities of stoicism and rigid logic that are considered the embodiment of intelligent thought within philosophy. This realm of thought which manifests itself in the centuries-old patriarchal legal system, operates in direct contrast with what is labelled as the ‘feminine’ realm of emotional subjectivity.

The traditional legal system has a preference for masculine ideals of justice. It values control, hierarchy, objectivity and adversary in resolving conflicts and operates to overlook the relational and innately human and subjective aspects of disputes. In contrast, mediation operates on what are considered feminine principles of consent, empowerment and recognition for both the objective and subjective wrongs that have occurred. It considers the broader circumstances of those involved and the emotions that are products of those circumstances and emphasises cooperation over competition to resolve a conflict.

While mediation may uphold feminine values, in practice, the dominant masculine norms within society and the legal community operate to impede mediation from obtaining its intended objectives. These norms result in subtle and entrenched gender biases that are held by parties and mediators, regardless of gender. The effect of this bias creates an environment where a feminist conflict resolution approach is appropriated and used by men to dominate the female party. The result is that women who are party to a mandatory family law mediation are robbed of their opportunity to obtain true justice.

II. The Effect of Patriarchal Influences in Mediation

While masculine ideals of justice provide the framework in which mediation operates, broader issues of systemic patriarchy and gendered notions of communication also need to be accounted for when considering how the objectives of mediation are undermined.

A. Systematic Patriarchy

Rachael Field argues that while patriarchy continues to maintain an unwavering grasp on society and its systems — including government. Because patriarchy continues to maintain a stranglehold on broader governing systems, its influence is fed down into our legal systems, which are then subject to the same underlying masculine norms. This filters down into mediation where a battle of masculine and feminine values and ideals ensues. Where participants in a mediation are male and female, the contrast of gendered values becomes more prominent — with mediation perpetuating conventional ideas of gendered roles, behaviours and expectations and embedding those into the expectations and outcomes that mediation seeks to achieve. This effect is particularly evident in mediation settings where pre-existing power imbalances, such as gendered, financial, psychological or emotional, place women at a disadvantage. Penelope Bryan best summarises this problem by arguing that “mediation empowers only the already more powerful husband.”

For example, Goodmark maintains that “many women are just a divorce away from poverty”. This quote underscores the vulnerability that many women experience by engaging in family law mediation. While mediation is objectively designed to empower women and provide a platform and opportunity for women to voice their experiences and desired outcomes, the goal of procedural empowerment is often defeated by the already better-resourced male. This scenario is common where mediation is used to negotiate and finalise post-divorce financial agreements. Women can and do settle for less than they would otherwise be entitled to because they lack the resources to pursue the matter within a formal court setting. The bottom line is then that, while mediation seeks to uphold feminist values, in reality it will always be subject to the dominance of masculine norms through either systematic patriarchy or the male participant who is better financed because of the societal ideals that enable him to be that position.

B. Gendered Communication, Negotiating Styles and Family Violence

Gendered communication styles continue to shape mediation dynamics. Masculine forms of communication are commonly competitive, and this can come into play at the bargaining table and has the effect of dominating feminine styles of communication that are more cooperative and centred around reaching a mutually beneficial agreement that accounts for each party’s needs. Society has played a role in labelling women who assert their rights and opinions as ‘pushy, difficult, loud and bossy’. At the same time, these behaviours are reframed in the masculine lens as being the expected norms for men. As a result, the feminist-informed mediation process is hijacked by masculine approaches to conflict when men come to the table.

For women, these accepted norms of gendered communication create a mediation process that inadvertently disadvantages them in family law mediation proceedings. For example, while mediation is based on the idea of consent — this principle is undermined by the intentions and behaviours of perpetrators of violence. In such a circumstance, the principle of honesty and mutually beneficial outcomes that inform the mediation process become illusionary. This illusion of consent creates injustices for women who are part of mediation processes because the mediation process is not designed to expose male subterfuge or challenge the truthfulness of a person’s story. The result is a mediation where women come to the table with good-faith intentions are dominated by bad-faith male strategies to dominate and control. In reality, this forces women who are party to mediation proceedings to experience a form of process abuse within mediation, which can result in women accepting outcomes that are far less beneficial for themselves than they would be entitled to in a court proceeding.Therefore, a mediation process where these imbalances are unaccounted for enables injustice when women are systematically coerced into accepting an unjust outcome to the dispute.

While the Family Law Act 1975 (Cth) does account for family violence in mandatory mediation and provides that parties need not attend mediation if violence is present — in practice, this is reliant on women asserting their experiences with family violence, which a woman either may not be ready to do. This process also fails to account for forms of abuse that are subtle and aimed at undermining a person’s confidence in their lived reality. Such forms of abuse are difficult to detect, and victims may not fully recognise the extent of their abuse until well after the relationship has ended. The current process requires women to identify and articulate their abuse — in practice, such a feat is not always straightforward.

V. The Impartiality Myth: Mediator Ideologies and Biases

The Australian National Mediator Standards provide that ’a mediator must conduct the…process impartially.’ These standards list impartiality as being ‘free from bias’. However, this overly simplified notion of impartiality fails to account for the complex systematic sources of power discussed earlier in this paper, which manifest from societal ideals of gender that both remain entrenched in our government and legal system and inform the nature of communication and roles in heterosexual relationships. It is difficult to account for patriarchal influences when patriarchy is not acknowledged as a problem at a systematic level. This means that it is a mistake to think that mediators are truly impartial when they reside within a system that is yet to acknowledge gender bias as a pervasive issue. This point was discussed by Trina Grillo in a paper titled ‘The Mediation Alternative: Process Dangers for Women’ that dissects the role of patriarchy in mediation and asserts that a mediator’s attempt to remain neutral is doomed for failure when it exists within a system that doesn’t adequately account for underlying biases.

Further, mediators play a decisive role in driving the direction of the conversation and exercising influence over the outcomes of mediations. This authority can be marred by a mediator’s unconscious biases (which are the result of normative societal ideals) of family and the best interests of a child. Identifying the potential outcomes of a mediation at the start plays a significant role in the results produced from mediation discussions. This form of mediatory power remains unchecked due to the private nature of mediation sessions. The nature of mediators possessing the power to drive the content of discussions contradicts the idea of the independent and impartial mediator, and when left unacknowledged, has the potential to be wielded inadvertently as a tool against women’s interests within mediation. Donna Cooper and Rachael Field labelled the requirement for mediators to exist without bias as wholly inhuman and one that cannot exist in a process established to enable disputants to tell their narratives through truth-telling and cooperative understanding. Inhuman stoicism has no place in human-centred approaches to conflict resolution.

A. Genuine Effort and Emotional Expression in Mediation

The myth of the impartial mediator becomes particularly evident when considering family law mediation proceedings where a mediator must judge whether or not a party has demonstrated ‘genuine effort’ to resolve a dispute. Demonstrating genuine effort is a critical turning point for family law litigation participants as it continues to influence the court’s approach when considering parenting arrangements and financial outcomes. However, the judgement of ‘genuine effort’ is subjective and is particularly vulnerable to ingrained gender biases — particularly in regards to situations where one party may be experiencing heightened emotions and find it difficult to participate when faced with their perpetrator who is presenting themselves as calm, rational and charming.

Traditionally, mediation — and the legal system in which it exists — demands a level of composure and emotional discipline that are viewed as essential for discussions and decision-making. This mirrors the principles mentioned earlier of masculine rationality and stoicism. Women, particularly those who are experiencing complex post-separation issues, are often subject to having their valid emotional responses wrongly interpreted as a sign of aggression and difficulty. The result is another layer in which masculine ideals are given more weight over feminine expressions of authentic emotions — the latter which are dismissed as indicators of an inability to participate effectively in a mediation process. In short, men’s stoicism is placed as the ideal of ‘genuine effort’, whereas women’s emotional reactions are viewed as operating in direct contrast to this requirement. Such judgments prevent the mediation process from addressing the parties’ relational aspects and can create injustices for women if a resolution is not reached at the mediation stage.

In sum, gender biases deeply influence the subjective assessment of ‘genuine effort’. It is vital to acknowledge these biases to promote truly equitable mediation practices.

VII. Conclusion

Despite mediation aiming to provide unbiased solutions, the influence of patriarchy present in mediation continues to create outcomes that are unjust for women. Therefore, mediation within the family law context that fails to account for the tripartite framework of bias will continue to impede justice for women.

References

Australian Institute of Family Studies, Evaluation of the 2006 Family Law Reforms (Report, December 2009) 1–405

Donna Cooper and Rachel Field, ‘The Family Dispute Resolution of Parenting Matters

Elizabeth Grosz, ‘Volatile Bodies: Toward a Corporeal Feminism’ (1997) 12(4) Hypatia 211–217

Eve Hill, ‘Alternative Dispute Resolution in A Feminist Voice’ (1990) 5(2) Journal of Dispute Resolution 337–339

Jennifer Daw, et al, ‘”You don’t notice it, it’s like boiling water”: Identifying Psychological Abuse Within Intimate Partner Relationships and How it Develops Across a Domestic Homicide Timeline’ (2022) 42(1) 20000–20014

Rachael Field, ‘The Art of Power (Im)Balancing’ (1996) 12(1) QUT Law Review 274–291

Rachael Field, ‘Using the feminist critique of mediation to explore ‘the good, the bad and the ugly’ implications for women of the introduction of mandatory family dispute resolution in Australia’ (2006) 20(1) Australian Journal of Family Law 45–78

Katherine Rudolph, ‘Feminist Interpretations of Descartes (review)’ (2004) 19(2) Hypatia 190–194

Leigh Goodmark, ‘Alternative Dispute Resolution and the Potential for Gender Bias’ (2000) 21(0) The Judges’ Journal 21–47

Sarah Dobinson, ‘Relational Autonomy and Family Dispute Resolution: How a Feminist Approach Can Improve Service Delivery in the Context of Family Violence’ (2016) 16(4) University of New South Wales Law Journal Student Series (online).

Nancy Maxwell, ‘The Feminist Dilemma in Mediation’ (1992) 4(1) International Review of Comparative Public Policy 67–84

Trina Grillo, ‘The Mediation Alternative: Process Dangers for Women’ (1991) 100(6) The Yale Law Journal 1545–1610

Family Law Act 1975 (Cth)

Australian Mediation Association, Australian National Mediator Accreditation Standards (2007)