Law, discretion, gender and justice in out-of-court financial settlements

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. 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.