Playing the Language Game of Family Mediation: Implications for Mediator Ethics

(2017) 35 Law in Context 84

17 Pages Posted: 23 Dec 2017

See all articles by Rachael Field

Rachael Field

Bond University - School of Law

Jonathan Crowe

University of Southern Queensland - School of Law and Justice

Date Written: December 19, 2017

Abstract

Over the last 20 to 30 years, the use of mediation in Australia to resolve family disputes has grown significantly. Since the 2006 reforms to the Family Law Act 1975 (Cth), family dispute resolution, a common form of which is family mediation, has effectively become a compulsory first step in post-separation parenting disputes that enter the family law system. There are many good reasons for encouraging parties to participate in family mediation. Mediation is a flexible, cost-effective, time-efficient, more humane, less adversarial way for families to manage and resolve post-separation disputes. Family mediation is also a process that enables party self-determination, empowering the parties to determine together the best arrangements for their family into the future. However, vigilance is required if the capacity of each party to negotiate towards a mutually agreeable outcome is to be effectively sustained and the full potential of the benefits of mediation are truly to be achieved. In this article, we use Ludwig Wittgenstein's concept of a language game and the related notion of a clash of genres to explore some of the underlying conventions and expectations that create challenges for the parties in family mediation. We then consider how mediators might respond to these challenges and the implications this holds for mediator ethics.

Keywords: Mediation ethics, discourse, language game, clash of genres

Suggested Citation

Field, Rachael and Crowe, Jonathan, Playing the Language Game of Family Mediation: Implications for Mediator Ethics (December 19, 2017). (2017) 35 Law in Context 84, Available at SSRN: https://ssrn.com/abstract=3090547

Rachael Field

Bond University - School of Law ( email )

Gold Coast, QLD 4229
Australia

Jonathan Crowe (Contact Author)

University of Southern Queensland - School of Law and Justice ( email )

West Street
Toowoomba, Queensland 4350
Australia

HOME PAGE: http://jonathancrowe.org/

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