Adversarial Mythologies: Policy Assumptions and Research Evidence in Family Law

Date01 March 2003
Published date01 March 2003
AuthorRosemary Hunter
ISSN: 0263-323X, pp. 156–76
Adversarial Mythologies: Policy Assumptions and Research
Evidence in Family Law
Rosemary Hunter*
This article contrasts policy advocacy of alternative dispute resolution,
and demonization of lawyers and court proceedings in family law, with
research evidence that calls those policy positions into question. The
research demonstrates, broadly, that restrictions on the availability of
publicly funded legal representation do not necessarily lead parties to
choose alternative resolution processes, that lawyers are much less
adversarial than self-representing litigants, and that lawyer repre-
sentation and litigation may produce more satisfactory and
appropriate outcomes than mediation in some kinds of family disputes.
The article argues that legal aid policies should respond to these
realities rather than clinging to adversarial mythologies.
The notion that lawyers and courts are entrenched in an adversarial mindset,
and consequently exacerbate rather than resolve interpersonal and social
conflict, has underpinned legal reform proposals in both the United Kingdom
and Australia.
Particularly striking illustrations of this notion were provided
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*Socio-Legal Research Centre, Law School, Griffith University, Nathan,
Queensland 4111, Australia
I would like to thank Pascoe Pleasence for inviting me to participate in the Legal Services
Research Centre conference in March 2002, and all of the colleagues who have worked
with me on the various research projects reported here.
1 For example, Lord Woolf, Access to Justice: Interim Report (1995); Lord Woolf,
Access to Justice: Final Report (1996); J. Eekelaar et al., Family Lawyers: The
Divorce Work of Solicitors (2000) 2, 6, 7, 9; P. Lewis, Assumptions About Lawyers in
Policy Statements: A Survey of Relevant Research (2000); Commonwealth of
Australia, Attorney-General’s Department, The Delivery of Primary Dispute
Resolution Services in Family Law (1997) and The Delivery of Primary Dispute
Resolution Services in Family Law: Next Steps (1998); Commonwealth of Australia,
Family Law Pathways Advisory Group, Out of the Maze: Pathways to the Future for
Families Experiencing Separation (2001) ES 4, 58. See, also, M. Galanter, ‘Predators
by two former Australian government legal aid bureaucrats in recent
interviews with the author and a colleague.
The first interviewee expressed
the negative version of the adversarialism thesis, that lawyers and courts are
poisonous and to be avoided at all costs:
Certainly my views are that if you can keep away from lawyers then good luck
to you. Because I see the legal system as becoming . .. it’s become very
precious in the last 20 years quite frankly. We are the most procedurally
conscious society, the litigation society . .. The growing ability to litigate
almost any kind of thing has taken giant steps in the last 20 years. And all of
these things contribute to the changing nature of the reputation of the judicial
system. It’s going down, down, down and down . . . So yes, the
Commonwealth over the nineties was moving stronger and stronger and
stronger in the direction of saying: ‘the worst thing you can possibly do is send
somebody to a court’, in terms of the cost, the time, the impact on your life, the
falling in the quicksands of lawyers and all of that sort of thing.
. . .
[T]he Family Court is a stinking mess. And . .. it’s inefficient, it’s up itself, it
doesn’t do things well and it creates cost . .. [T]he Family Court takes the view
that you walk through the door and lodge your document, then you can have
your time to come before us for a full blown whatever. And even though we
may have given an order in relation to this matter only four months ago, you
can walk back in the door and ask us to go through it again. Well, excuse me
. . .
The second interviewee expressed the positive version of the thesis, that
there are much better dispute resolution procedures available than going to
I myself was very committed to [alternative dispute resolution] . .. Trying to
look at solutions that weren’t traditional legal solutions . . . A feeling that in
many cases there’s a better way to solve the problem, particularly in family
. . .
[T]o go back to what I was saying before, and that’s partly a philosophical
issue but it’s also a cost issue. I mean why the hell would you really encourage
people to fight full cases in a court when they can sort it and actually own the
. . .
I think the whole family law system is far too much based on the law and not
on the relationship . . .
Taking these statements and others like them together, the policy position
that emerges can be expressed in two, fairly simple equations:
and Parasites: Lawyer-Bashing and Civil Justice’ (1994) 28 Georgia Law Rev. 633
for United States examples.
2 The aim of the research project is to examine the changes in Australian legal aid
policies and practices in the 1990s, their immediate rationales and philosophical
underpinnings. The research is funded by a Griffith University Research Develop-
ment Grant.
3 Interviewee 6, interviewed by R. Hunter and J. Giddings, 6 December 2001.
4 Interviewee 4, interviewed by R. Hunter and J. Giddings, 15 November 2001.
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