The Shortcomings of Family Mediation and Restorative Justice Proceedings

Author:Serene Reza
The Shortcomings of Family Mediation and Restorative
Justice Proceedings
Serene Reza
This paper aims to examine the range and validity of critiques in family mediation and restorative
justice proceedings. Written as part of an undergraduate module on Alternative Dispute Resolution
(ADR), it addresses several criticisms that ADR has faced alongside its growing prominence in recent
years. Using family mediation and restorative justice as the means by which to contextualise these
criticisms, the article explores three major critiques: a lack of impartiality, power imbalances, and
finally, informality that leads to injustice and uncertainty. Each analysis is explored discreetly, as well
as in the two chosen mediatory contexts, and subsequently evaluated and compared with the adversarial
system. The article arrives at the conclusion that each critique is intrinsically linked to the next, and,
moreover, many of the advantages of family mediation and restorative justice also contribute to the
perceived disadvantages. The paper strives to demonstrate that choosing to undertake a specific form of
ADR is dependent on the individual’s sense of personal justice and how they are looking to attain it.
Modern Alternative Dispute Resolution (‘ADR’) processes largely c omprise of arbitration,
collaboration, negotiation, conciliation, and mediation. These subspecies of the larger ADR genus
have obtained global recognition in r ecent decades, with growing prominence in both legal
practice and academia.
The reasons beh ind the growth of ADR are several. Factors such as the increased delay and
expense in the adversarial system following legal reform, as well as worldwide Access to Justice
movements have significantly contributed. In some cases, a resistance towards courts and their
perceived generalist solutions has also developed.
This increasing prevalence of ADR has been
met with tremendous support in some instances, though it h as also engendered a plethora of
criticisms. This article addresses criticisms of mediation in particular, which is defined by Folberg
and Taylor as:
A proc ess by which the participants, together with the assistance of a neutral third
person or persons, systematically isolate dispute issues, in order to develop options,
consider alternatives and reach consensual settlements that will accommodate their
needs. Mediation is a process which emphasises the participants' own responsibilities
for making decisions that affect their lives.
Simon Roberts and Michael Palmer, Dispute Processes, ADR and the Primary Forms of Decision-Making
(2nd edn, CUP 2005).
Jay Folberg and Alison Taylor, Mediation: A Comprehensive Guide to Resolving Conflicts Without
Litigation (John Wiley & Sons 1984) 7.

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