Families in Circle Process: Restorative Justice in Family Law

This article explores the use of “circle process”—a form of restorative justice—in family law and places this effort within a larger movement within the law toward law as a healing profession, or the “comprehensive law movement.” It explores the features and underpinnings of circle process and its relationship to original forms of dispute resolution such as those used in African‐style mediation and indigenous people's dispute resolution in North America. Values expressed by these forms of dispute resolution are argued to be particularly relevant in family law. Finally, it focuses on an innovative and exciting court‐sponsored program begun in Chicago in 2008, using circle process with families in conflict, in the Cook County Parentage and Child Support Court. This program's results suggest potential benefits and cautions of using circle process in family law.

Key Points for the Family Court Community:
• Restorative justice, in particular, circle process, can be used to resolve family law cases.
• Circle process widens the group of participants in alternative dispute resolution of family law matters.
• Circle process brings more voices to the table, namely, extended family, friends, and supporters, thus enhancing the group's decisionmaking.
• Judges will want to be sure the families in question are appropriate for circle process before referring them to this method of resolving disputes.
• Circle processes can result in improved communication and relations among families in conflict.
• Circle process reflects the values of “original dispute resolution,” which often in turn reflects ubuntu, the idea that all humankind is interconnected.
• Circle process is part of a greater movement towards law as a healing profession/the comprehensive law movement, which includes therapeutic jurisprudence.

     

法律思维能力在法律高等教育中的核心定位及培养——一个比较视角的研究

在法学本科教育上历来存在大陆法系模式与英美法系模式之争,但这一争议多半是局限于表面现象的结果。如果从培养法律思维能力角度考察,就会发现两种模式高度同一,都是以法律思维能力培养为核心的。所谓模式差异非但不构成争议之源,恰恰都是为满足法律思维能力培养需要而基于不同法律传统所做的不同选择。中国法学教育同样应以此为核心,结合中国的法律特点与现实需求,改进现有培养方案。     

HOFSTRA'S FAMILY LAW WITH SKILLS COURSE: IMPLEMENTING FLER (THE FAMILY LAW EDUCATION REFORM PROJECT)

The Family Law Education Reform Project (FLER) Final Report documented that the current doctrinally oriented family law curriculum at most law schools does not adequately prepare students for modern family law practice. FLER recommended that law school courses move from the study of cases to the study of the legal system's effect on families, and integrate the study of alternative dispute resolution and interdisciplinary knowledge. In response, Hofstra Law School has made a comprehensive attempt to implement FLER's curricular recommendations. This article discusses one major innovation – the Family Law with Skills course. Family Law with Skills is the basic course in Hofstra's revised curriculum and is designed to integrate doctrinal teaching with professional skills development. In addition to studying legal doctrine, students are required to engage in structured field observation of family court proceedings; interviewing, counseling, negotiation, and mediation representation exercises in a divorce dispute; direct and cross examination of a social worker in a child protection dispute; and drafting of a surrogacy agreement. The article describes each exercise and discusses its rationale, student reaction to the course, and lessons learned.     

IN THE BEST INTERESTS OF CHILDREN

In the traditional family law and child protection litigation where the court is asked to make determinations based on the best interests of a minor, the adversarial, rights-based model often fails to serve the interests of children and families and may be more harmful than beneficial to children relative to other possible methods of dispute resolution. This article examines the shortcomings of such an adversarial, rights-based model; briefly highlights the literature on dispute resolution systems design; and then proposes a new approach to better serve the interests of children in family law and child protection cases.     

COLLABORATIVE PRACTICE IN THE CANADIAN LANDSCAPE

This article looks at the growth of collaborative practice in Canada in the last decade and the legal and Canadian cultural underpinnings influencing this growth. Government recognition of and support for collaborative process has come from both the federal and provincial governments. Statutory support in family law statutes and in ethical standards for lawyers encourage alternate dispute resolution and have helped normalize consensual dispute resolution options. The article also looks at decisions from Canadian courts relating to the practice of collaborative law, including the confidentiality of collaborative process negotiations as set out in the participation agreement and the standard of care necessary for collaborative lawyers.     

NEW ZEALAND FAMILY LAW REPORT

The New Zealand family law system underwent an extensive review of the whole process in 1992. This report contains the recommendations resulting from that review. Among the recommendations is the establishment of a Family Conciliation Service attached to the court but separate in function to mediate the family law dispute. Judges need to take a much stronger hand in managing the cases when they come before the court.     

WORKING TOGETHER

Family Court of Australia has employed four Aboriginal Family Consultants within the Family Court Mediation Service in Darwin and Alice Springs. The consultants were selected from local indigenous people and assist indigenous families who are often in heated dispute over children following family breakdown and separation. The program ultimately seeks to promote access to justice for Aboriginal and Torres Stvait Islander people in the jurisdiction of family law. The program seeks to achieve this by assisting indigenous people to access and utilize the dispute resolution services provided by the Family Court. Family consultants work closely with court mediators in responding to the needs and issues of indigenous families in dispute. The article describes the model of intervention adopted and highlights the benefits of the program with reference to case studies.     

DISPUTE RESOLUTION AND THE POSTDIVORCE FAMILY: IMPLICATIONS OF A PARADIGM SHIFT1

Over the past two decades, there has been a paradigm shift in the way the legal system handles most family disputes—particularly disputes involving children. This paradigm shift has replaced the conventional model of adjudication with a more collaborative, interdisciplinary, and forward‐looking family dispute resolution regime. It has also transformed the practice of family law and fundamentally altered the way in which disputing families interact with the legal system. This essay examines the elements of this paradigm shift in family dispute resolution and explores the opportunities and challenges it offers for families, children, and the legal system.     

论行政争议——兼论行政争议与民事争议之区分

行政争议作为行政诉讼制度的核心概念 ,是行政诉讼与民事诉讼、刑事诉讼的根本不同之处 ,如何界定与判定行政争议则是行政诉讼理论中的一个基本问题。本文在公私法二元分立理论背景之下指出行政争议是行政主体在行使公权力过程中与相对人 (公民、法人和其他组织 )之间发生的、依据公法可以解决的争议 ,并以主体、公权力、权利义务等因素作为判断行政争议的标准。提出了从制度层面增加“行政争议”的概括性规定和设立权限争议的解决机制两点建议。     

TIPPINS AND WITTMANN ASKED THE WRONG QUESTION:

Tippins and Wittmann (2005) provide an important analysis of the limitations of child custody evaluations, but they are wrong to propose that court-appointed evaluators should be precluded from making recommendations about best interests decisions. While some of the evidence of evaluators may fail to meet the high standard of reliability expected for "expert evidence," the role of court-appointed evaluators in child-related cases is not the same as the role of party-retained experts in other types of litigation, and the legal basis for their involvement in the family law dispute resolution process is very different. The family courts should not apply the "expert evidence" standard when deciding how to use the evidence of a court-appointed evaluator, but rather should use a more flexible standard that takes account of the family law context. If the Tippins and Wittmann proposal is adopted, it will have negative implications for the resolution of family law cases, including making settlements less common, thereby deleteriously affecting children.     

The Interdisciplinary Settlement Conference: A Grassroots Alternative for Resolving High‐Conflict Parenting Disputes in Lean Times

This article describes a court‐connected alternative dispute resolution program, the Interdisciplinary Settlement Conference. The key feature of this program is the participation of two volunteer panelists, one a family law attorney and the other a mental health professional experienced in parenting disputes, who assist the judicial officer in working with the parties and their attorneys (if any) to reach a resolution of their parenting dispute. Significantly, in addition to addressing the parties’ legal issues, the panelists also address the parties’ psychological and emotional issues relevant to the dispute on an as‐needed basis. Findings from six years of experience with the program are discussed, including evidence of high satisfaction with the program, a high rate of settlement, a decrease in relitigation, and a concomitant savings of scarce judicial resources.     

FAMILIES,COURTS, AND THE END OF LIFE: SCHIAVO AND ITS IMPLICATIONS FOR THE FAMILY JUSTICE SYSTEM

The article discusses a proposed universal adoption of comprehensive family law subject matter jurisdiction, inclusive of end‐of‐life (EOL) cases, as articulated in the unified family court (UFC) concept. It posits, using the Schiavo matter to illustrate the difficulties inherent in EOL disputes, that contested EOL cases are unlike other civil court cases in that they involve intimate facts and emotionally laden family dynamics. As such, these cases pose a distinctive challenge for the courts. The article suggests that contested EOL cases should be heard in a UFC because UFCs include alternative dispute resolution (ADR) protocols to deescalate family strife with the goal of facilitating out‐of‐court settlements and that litigation is an imperfect solution for an EOL dispute. It is also noted that judges presiding in UFCs are more experienced in handling fractious family matters and thus they are more likely to avert protracted litigation if the matter is not settled via ADR.     

JUDICIALLY HOSTED SETTLEMENT CONFERENCES IN DOMESTIC RELATIONS CASES

Trial court judges have not traditionally been involved in facilitating negotiations in domestic relations cases. The move toward alternative dispute resolution presents opportunities to judges to involve themselves in assisting litigants and their attorneys to fashion agreements that are tailored to each family. This article examines the elements and variables inherent in settlement negotiations and domestic relations and makes suggestions for judges who host settlement conferences in family law cases.     

Public investment in private problems: legal aid and the family justice system

This paper examines findings from the Legal Aid Board Research Unit's Case Profiling Study in the light of the current reform programmes for both legal aid and family law. The findings relate to over 650 legally aided family cases including divorce, separation, ancillary relief and Children Act 1989 applications. The main aim of the study was to gain a better understanding of what is currently funded by the legal aid fund. Costs have been related to stages of cases and to the strategies employed by solicitors. Finally, I comment on the future role of legal aid in family law, suggesting that, to a large extent, public investment will be maintained. Remuneration of service providers will evolve as systems of contracting are introduced in January 2000. There will be continued emphasis on family mediation as an alternative method of dispute resolution. However, cases involving issues relating to children and their welfare will remain within the scope of public support. Domestic violence and other emergency issues will also merit high priority. Although there will be extensive changes in other areas of legal aid, family law appears to remain relatively unscathed.     

原则理论与法概念争议

法理学中法概念之争的中心议题在于法律和道德在概念上是否存在必然联系,或者说法律效力和道德正确性之间是否存在必然联系。为了证立联系命题,阿列克西在其早先的原则理论的基础上提出了原则论据,后者包括安置命题、道德命题与正确性命题。在逐一检讨了这三个命题的恰当性以及其与联系命题间的关联度后可以认为,原则论据无法用来证立联系命题。但这并不表示联系命题就必然失败,因为原则理论可以别的方式来证明它。法概念的争议是有关法律效力判准的争议,最终是政治哲学上的争议。     

法经济学与纠纷解决

作为一种全新的法学解释系统和理论框架,法经济学有着自身的研究范式。法经济学的研究范式应该是研究纠纷解决理论的有利工具。法经济学基本研究范式对纠纷解决的理论阐释包括对成本效益、供求关系和市场、纠纷解决过程中国家制定法与民间社会非正式规范的博弈均衡等诸多方面的理论分析。在法经济学的研究视角下,论述纠纷诉讼外解决的经济社会合理性。     

The importance of teaching dispute resolution in a twenty-first-century law school

Civil justice reviews over the past 20 years have encouraged the use of alternative dispute resolution (ADR) and particularly mediation. Mediation is arguably now becoming more mainstream in terms of dispute resolution process choice. In some instances law changes have been introduced requiring parties in dispute to consider using mediation; similarly, lawyers have an ethical responsibility to provide advice to their clients about the range of dispute resolution processes available. What is lacking however is a corresponding appreciation of the changing attitudes to the teaching of dispute resolution in the majority of UK law schools, where the promotion of adversarialism within the curriculum appears to remain the focus as the primary and only method of dispute resolution. The article argues that this is unreflective of current attitudes and thinking towards dispute resolution in most common law countries, where litigation is no longer necessarily the primary dispute resolution process of choice. Whilst there was token appreciation of the importance of mediation advocacy and its inclusion recommended within the Bar Practice Training Course (BPTC), the recent Legal Education and Training Review was silent on any suggestions about the inclusion of dispute resolution based curriculum content at any stage of legal education in England and Wales. The article will explore the historical development of lawyers’ attitudes to dispute resolution within the civil justice arena and academics’ teaching of curriculum associated with it in UK law schools. The article will pose questions on why recent legal history suggests that law schools should now perhaps take a more socio-legal approach to their curriculum content and embrace the teaching of dispute resolution as a defined subject area for the twenty-first-century law school.     

Hearing parties' voices in Coordinated Family Dispute Resolution (CFDR): An Australian pilot of a family mediation model designed for matters involving a history of domestic violence

This paper discusses the Coordinated Family Dispute Resolution (family mediation) process piloted in Australia in 2010–2012. This process was evaluated by the Australian Institute of Family Studies as being ‘at the cutting edge of family law practice’ because it involves the conscious application of mediation where there has been a history of family violence, in a clinically collaborative multidisciplinary and multi-agency setting. The Australian government's failure to invest resources in the ongoing funding of this model jeopardises the safety and efficacy of family dispute resolution practice in family violence contexts, and compromises the hearing of the voices of family violence victims and their children.     

论纠纷的可诉性

纠纷的可诉性是实现当事人的裁判请求权的逻辑前提 ,纠纷可诉性的广度反映了裁判请求权的实现程度。目前我国民事诉讼法理论和实务界关于纠纷可诉性的标准或依据及范围的理解限制了裁判请求权实现的空间范围。纠纷可诉性的标准应当为纠纷是平等主体之间的财产关系争议和人身关系争议 ,而并非限于民事法律关系争议。纠纷可诉性的范围包括民法所调整的民事法律关系发生的争议、应受民事法律保护的应有权利受到侵害引发的争议、宪法权利受到私法主体侵害所引发的争议。     

MEDIATION AND THE PROCESS OF FAMILY LAW REFORM

The family law system needs fixing. The real question is how to go about fixing it. The concept of mediation and its process should be vital in the rethinking and restructuring of the system. This article discusses how mediation can be used in policy-making to get all the stakeholders in the family law system to creatively and non-judgmentally work toward reform. The author contends that increased legal access and speedy low-cost dispute resolution should be at the top of the reform agenda. Courts and professional offices are valued for their consumer-friendliness, stressing nonadversarial settings and cleint education. Unbundling is urged to be not only accepted but also promoted as a practice to meet the legal needs of families. The article concludes with the argument that effective reform should incorporate the principles of mediation, and the reform process should take advantage of models of consumer friendliness from both the public and private sectors .