Bargaining in the Shadow of the Folk Law: Expanding the Concept of the Shadow of the Law in Family Dispute Resolution

Jonathan Crowe, Rachael Field, Lisa Toohey, Helen Partridge and Lynn McAllister, ‘Bargaining in the Shadow of the Folk Law: Expanding the Concept of the Shadow of the Law in Family Dispute Resolution’ (2018) 40 Sydney Law Review 319

20 Pages Posted: 7 Dec 2018

See all articles by Jonathan Crowe

Jonathan Crowe

Bond University - School of Law

Rachael Field

Bond University - School of Law

Lisa Toohey

University of Newcastle Law School, Australia

Helen Partridge

University of Southern Queensland

Lynn McAllister

Queensland University of Technology, School of Information Systems

Date Written: November 13, 2018

Abstract

The idea that parties bargain in the shadow of the law has been highly influential in research on dispute resolution and family law. Critics have questioned the utility and coherence of the concept, but it continues to be widely accepted. This article draws on an empirical study of access to legal information in a post-separation context to argue for a broader and more realistic understanding of how the shadow of the law influences parties’ expectations and strategies in family law matters. Family dispute resolution, we suggest, does not take place in the shadow of the positive law (the law contained in statutes, case law and other formal legal sources), so much as the shadow of the folk law (the law as depicted in informal sources such as online materials and popular media). It follows that there is not just one shadow of the law; rather, there are multiple shadows. These findings hold important implications for government agencies, family dispute resolution providers and others involved in providing information and advice on post-separation issues.

Keywords: Mediation, Dispute Resolution, Family Law, Shadow of the Law, Concept of Law, Folk Law

Suggested Citation

Crowe, Jonathan and Field, Rachael and Toohey, Lisa and Partridge, Helen and McAllister, Lynn, Bargaining in the Shadow of the Folk Law: Expanding the Concept of the Shadow of the Law in Family Dispute Resolution (November 13, 2018). Jonathan Crowe, Rachael Field, Lisa Toohey, Helen Partridge and Lynn McAllister, ‘Bargaining in the Shadow of the Folk Law: Expanding the Concept of the Shadow of the Law in Family Dispute Resolution’ (2018) 40 Sydney Law Review 319. Available at SSRN: https://ssrn.com/abstract=3283492

Jonathan Crowe (Contact Author)

Bond University - School of Law ( email )

Gold Coast, QLD 4229
Australia

HOME PAGE: http://jonathancrowe.org

Rachael Field

Bond University - School of Law ( email )

Gold Coast, QLD 4229
Australia

Lisa Toohey

University of Newcastle Law School, Australia ( email )

1 University Drive
Callaghan, 2308
Australia

Helen Partridge

University of Southern Queensland ( email )

P.O.Box 238 Darling Heights
Toowoomba, Queensland 4350
Australia

Lynn McAllister

Queensland University of Technology, School of Information Systems ( email )

Gardens Point Campus, P Block Level 8
Brisbane
Australia

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