THE IMPORTANCE OF PHILOSOPHY IN FAMILY LAW PRACTICE: Mediation Principles, Collaborative Methods, and the 'regular' Family Law Process

In the ‘regular’ adversarial legal system, positions are taken automatically and become fixed quite quickly. Family law, by its very nature, obviously lends itself to this model very well. Fixed positions can become entrenched positions far too easily and, too often, permanently.

Mediation principles offer a shift from position-based negotiation to interests-based negotiation, with a focus on outcomes instead of entitlements and a shift from win-lose to best alternatives for all.

Collaborative methods offer effective dissemination of information and inclusive ways of working to minimise time and cost.

With a less rule-oriented focus, information can be imparted and interpreted in different ways. More options can present, more innovative solutions can be considered, more tailored outcomes are possible.  

Whilst the rules are obviously important and provide necessary structure, the focus cannot just be on what one piece of legislation to be applied to all families dictates, or on case law that was actually applied to one family says.

This is not to say that the adversarial model is all bad and that strategy has no place. Rather, it is to say that every issue is unique, even within the one matter. Unfortunately, family law can be a long game. Ideally, it should be less long.

If strategy and tactic are beneficial to minimise the battles that risk the parties forgetting what the war is even about, then it would be foolish to rule them out.   

Incorporating the best of each method means they can check and balance each other. But even more importantly, doing so promotes a greater consideration of legal jurisprudence – not just what the law is but what it should be, and how it relates to human attitudes and practices, so that values can be prioritised and complexity can be simplified.

It is the Philosophy of Law.

And from philosophy came psychology.

And psychology and family law are inevitably inextricably linked.