Law, discretion, gender and justice in out-of-court financial settlements
Hunter, R; Barlow, A; Smithson, J; et al.Ewing, J
Date: 1 August 2018
Article
Journal
Australian Journal of Family Law
Publisher
LexisNexis Australia
Abstract
This paper presents some of the findings of our Mapping Paths to Family Justice research
with regard to out-of-court settlements in financial cases, considering what parties and
practitioners respectively bring to the process of dispute resolution, and how outcomes are
influenced by practitioners’ and parties’ contributions. ...
This paper presents some of the findings of our Mapping Paths to Family Justice research
with regard to out-of-court settlements in financial cases, considering what parties and
practitioners respectively bring to the process of dispute resolution, and how outcomes are
influenced by practitioners’ and parties’ contributions. Practitioners play an important role
in determining the extent to which the ‘shadow of the law’ falls on out-of-court dispute
resolution, and this might vary by the type of dispute resolution process and the individual
practitioner’s views, but is also complicated by the fact that the law’s shadow in a highly
discretionary system may be distinctly hazy. Parties, in turn, bring to the process their own
normative conceptions of a fair outcome, which are markedly gendered. Outcomes thus
tend to be a function of the interaction between the respective norms of the parties, their
respective needs to settle and willingness or compulsion to compromise, and the nature and
direction of practitioner (non-) intervention. Despite these complexities and the range of
individual circumstances, some clear patterns of outcomes were observed, some of which
gave rise to concerns about systematic disadvantages for women in financial dispute
resolution.
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