Mandatory Family Mediation and the Settlement Mission: A Feminist Critique

Abstract

North American family law conflicts are very often brought to mediation, in which a neutral third party attempts to bring about a voluntary resolution of the spouses’ dispute. Family mediation has many enthusiastic supporters, and has in many jurisdictions been made a mandatory precursor to traditional litigation. However, it has also given rise to a potent feminist critique, which identifies power imbalance and domestic violence as sources of exploitation and unjust mediated outcomes. This article summarizes the feminist critique of family mediation, and assesses the efforts of contemporary mediation practice to respond to it. Even in the absence of formal family mediation, litigating spouses are likely to be subjected to substantial informal pressure to settle from judges and other family justice system workers. The article argues that the feminist critique might be more relevant to this “settlement mission” than it is to formal family mediation as it is practiced today.

Keywords: Mediation, power imbalance, domestic violence, family court, family law