Alternative Dispute Resolution and Domestic Violence: Women, Divorce and Alternative Justice, 1st Edition (Hardback) book cover

Alternative Dispute Resolution and Domestic Violence

Women, Divorce and Alternative Justice, 1st Edition

By Dafna Lavi

Routledge

228 pages

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pub: 2018-05-08
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Description

Dealing with the interface between the Alternative Dispute Resolution (ADR) movement and the phenomenon of domestic violence against women, this book examines the phenomenon of divorce disputes involving violence through the prism of ‘alternative justice’ and the dispute resolution mechanisms offered by the ADR movement. This book is the first academic treatise presenting the theoretical underpinnings of the correlation between the ADR movement and divorce disputes involving violence, and the potential contribution of this movement to the treatment of disputes of this nature. Through mapping the main values of the ADR movement, the book proposes a theoretical-analytical basis for understanding the inability of the legal system to deal with disputes of this nature, alongside a real alternative, in the form of the ADR mechanisms.

Table of Contents

CONTENTS

INTRODUCTION

PART I Judicial Justice and Alternative Justice in Divorce Cases Involving Violence

1. ADR and its Alternative Justice: In General

1.1 Introduction

1.2 The Values and Language of Alternative Justice

1.2.1 Interests-Based Negotiation and Hidden Layers of the Conflict 1.2.1.1 The Background

1.2.1.2 In Pragmatic Mediation

1.2.1.3 In Transformative Mediation

1.2.1.4 In Narrative Mediation

1.2.1.5 In the Collaborative Law Model

1.2.2 Respect for the Parties’ Autonomy and a Non-Coercive Stance

1.2.2.1 In General

1.2.2.2 In Particular

1.2.2.3 As Opposed to the 'Search for the Truth' Approach

1.2.2.4 Together with the Trends of Post-Modernism

1.2.2.5 Together with the Critical-Societal Narrative of Judicial Justice

1.2.2.6 Together with Efficiency, Effectiveness and Reduction of Workload Problems

1.2.3 Confidence in the Parties' Potential and the Potential of the Process

1.2.3.1 In Pragmatic Mediation

1.2.3.2 In Transformative Mediation

1.2.3.3 In the Mediation-Arbitration Process

1.2.3.4 In the ADR Movement as a Whole

1.2.4 The Parties as Partners and Emphasis on the Relationship and on Emotions

1.2.4.1 The Pragmatism of Fisher & Ury

1.2.4.2 The Transformative Story

1.2.4.3 Partnership Relationship and Connection in Collaborative Law

1.2.4.4 Relationships and Emotions

1.2.4.5 Emotions and the Feminist Critical Narrative

1.2.4.6 Emotions and Non-Adversarial Solutions

1.3 Conclusion

2. Domestic Violence against Women: A Developing Phenomenon

2.1 Introduction

2.2 Quantitative and Terminological Development

2.2.1 The Data

2.2.2 The Definition

2.3 Social-Cultural Development

2.3.1 From the ‘Private’ to the ‘Public’

2.3.2 The Feminist Contribution

2.4 The Legal Development

2.4.1 The Preliminary Stage: Transition from Non-Intervention to Legal Intervention

2.4.2 The Second Stage: Civil Protection Orders and Changes in Custody Laws

2.4.3 The Third Stage: ‘No-Drop’ Policies

2.4.4 The Fourth Stage: The Violence against Women Act and Legal Developments

2.4.5 The Fifth Stage: The Establishment of Special Courts to Deal with the Phenomenon

2.4.6 Legal Developments – A Comparative View

2.5 The Development of the Critical Narratives of Judicial Justice in Dealing with the Phenomenon

2.5.1 Empirical Criticism

2.5.2 The Dangers of the Adversarial Justice System

2.5.3 Limitations of ‘Search for the Truth’ Justice

2.5.4 A Justice System Susceptible to Manipulation

2.5.5 The Risk of Losing Custody of the Children

2.5.6 Patriarchal Justice Empowers the Strong and Disempowers the Weak

2.5.7 General Formal Justice based on Rights rather than Interests

2.5.8 Limitations of Decisive Justice

2.6 Conclusion

3. Alternative Justice and Domestic Violence against Women: The Correlation and Synergies

3.1 Introduction

3.2 The Values of Alternative Justice in Divorce Disputes Involving Violence

3.2.1 Interests-Based Negotiationand Hidden Layers of the Conflict

3.2.1.1 Interests-Based Negotiationand Restorative Justice

3.2.1.2 Interests-Based Negotiationand the Attorney

3.2.1.3 Interests-Based Negotiationas a Tool for Creative Crafting of Individualized Solutions

3.2.1.4 Interests-Based Negotiationand the Collaborative Law Model

3.2.1.5 Adapting the Forum to the Dispute and its Contribution to the Interests-Based Negotiation

3.2.2 Respect for the Victim’s Autonomy and a Non-Coercive Stance

3.2.2.1 Restorative Justice and the Value of Respect for the Victim’s Autonomy

3.2.2.2 Interests-Based Negotiationand Respect for the Victim’s Autonomy

3.2.2.3 Respect for the Victim’s Autonomy, the Attorney and Client-Centered Lawyering

3.2.2.4 Failure to Respect the Victim’s Inner Truth – Feminist Criticism

3.2.2.5 The Influences of the Narrative Mediation Model and Alternative Language

3.2.3 Confidence in the Parties' Potential and the Potential of the Process

3.2.3.1 Penetration of the Insights of the Restorative Justice Movement

3.2.3.2 Penetration of the Insights of Transformative Mediation regarding the Parties’ Potential for Empowerment

3.2.3.3 Empowerment and Confidence in the Potential of the Batterer

3.2.3.4 Client-Centered Lawyering and Confidence in the Victim's Potential for Empowerment

3.2.3.5 Changing Terms: ‘Survivor’ instead of ‘Victim’

3.2.3.6 The Legal System; the Victimization Narrative and Disempowerment

3.2.3.7 Penetration of Insights of Narrative Mediation

3.2.4 The Parties as Partners and Emphasis on the Relationship and Emotions

3.2.4.1 Emotions, Perceptions of the Bond and Partnership in Mediation in Criminal Cases

3.2.4.2 Emotions and the Feminist-Critical Narrative

3.2.4.3 The Victim’s Emotions, Empowerment and Recognition

3.2.4.4 The Relationship and Narrative Mediation

3.3 Conclusion

PART II Alternative Justice in Divorce Cases Involving Violence: The Criticism and Ways of Dealing with it

4. Opposition to ADR Mechanisms in Divorce Disputes Involving Violence

4.1 Introduction

4.2 Three Schools: Oppositional, Supportive and the In-Between School

4.2.1 The Oppositional School: The Oxymoron Perspective

4.2.1.1 Clash between Conceptions

4.2.1.2 The Danger Component

4.2.1.3 Power Gaps between the Parties

4.2.1.4 The Mediator’s Limitations

4.2.1.5 Preserving the Belligerent Paradigm

4.2.1.6 Downplaying and Distorting the Phenomenon of Domestic Violence

4.2.1.7 The Feminist Argument

4.2.2 The Supportive School: The Element of Relativity and the Comparative Component

4.2.2.1 Elimination of the Danger Component

4.2.2.2 The Mediator’s Skill

4.2.2.3 Efficiency and Effectiveness

4.2.3 The In-Between School: Empirical Accommodation and Softening the Oxymoronic Perspective

4.3 Three Schools: Theoretical Analysis

4.3.1 The Oppositional School: Theoretical Failure

4.3.2 The Supportive School and the In-Between School – Pragmatic Thinking

4.3.2.1 Pre-Screening

4.3.2.2 Caucusing [Separate Meetings]

4.3.2.3 The Mediator’s Training and Skill

4.4 Conclusion

5. Mediation-Arbitration (Med-Arb) and Online Mediation: Two Proposals for Improved ADR Mechanisms in Divorce Disputes Involving Violence

5.1 Introduction

5.2 Med-Arb

5.2.1 What it is and its Applicability

5.2.2 Advantages of Med-Arb in Divorce Disputes (Absent the Parameter of Violence)

5.2.3 Advantages of Med-Arb in Divorce Disputes Involving Violence

5.2.4 Med-Arb as Eliminating the Disadvantages of Mediation in Divorce Disputes Involving Violence

5.2.5 Alleged Disadvantages and the Ways of Dealing with them

5.2.6 Summary and Recommendations

5.3 Online Mediation

5.3.1 What it is and its Applicability

5.3.2 Online Mediation in Divorce Disputes (Absent the Parameter of Violence)

5.3.3 Online Mediation in Divorce Disputes Involving Violence

5.3.3.1 Elimination of the Disadvantages of Traditional Mediation

5.3.3.2 Independent Advantages of Online Mediation

5.3.3.3 Disadvantages of Online Mediation and the Ways of Dealing with them

5.3.4 Conclusion and Recommendations

6. Index

About the Author

Dr Dafna Lavi is a Senior Lecturer in Law at The Academic Center of Law and Science, Israel.

Subject Categories

BISAC Subject Codes/Headings:
SOC004000
SOCIAL SCIENCE / Criminology