FEDERAL FAMILY LAW REFORM IN 2005: The Problems and Pitfalls for Women and Children of an Increased Emphasis on Post-Separation Informal Dispute Resolution

1 The Government’s proposed New Family Law System will potentially endanger many women post-separation and jeopardise the justice of post-separation arrangements for women and children. The proposed new approach is unlikely to improve outcomes for families. Rather, it will possibly fail to protect the best interests of children by putting them, as well as their primary care-givers, at risk through an over-emphasis on informal dispute resolution close to the time of separation. The reforms also promote terminology that invites a focus on the pursuit of fathers’ interests post-separation rather than on the best

The Government's proposed New Family Law System will potentially endanger many women post-separation and jeopardise the justice of post-separation arrangements for women and children. The proposed new approach is unlikely to improve outcomes for families. Rather, it will possibly fail to protect the best interests of children by putting them, as well as their primary care-givers, at risk through an over-emphasis on informal dispute resolution close to the time of separation. The reforms also promote terminology that invites a focus on the pursuit of fathers' interests post-separation rather than on the best interests of children. The proposed reforms first articulated in the Discussion Paper of November 2004, and finalised in June 2005, appear to be a concession by the current Coalition Government to the demands of men's rights lobbyists, 2 and ignore the justice implications of the significant disadvantages that potentially arise for women and their children in the context of informal dispute resolution processes.
This article discusses dilemmas for women and children arising out of the Government's decision to increase the use of informal dispute resolution processes in family matters. It suggests that in the light of the disadvantages that women can face in informal processes, a model of dispute resolution that includes lawyers is justified. This is in direct contrast to the approach suggested in the reforms which states that lawyers are to be excluded from the proposed Family Relationship Centres on the basis that they are likely to make the processes practised in the Centres adversarial. 3 It is important to acknowledge that a discussion of common concerns for women in the context of post-separation dispute resolution must avoid essentialising those concerns. Women's experiences of life post-separation, and of informal dispute resolution processes in the context of family disputes, are diverse and informed by their individual identities and histories, and are influenced by factors such as race and socio-economic background. The intention of this article is not to homogenise women's experience, but to raise and emphasise, in the context of the Government's reform proposals, issues relevant to many women's perspective. These issues illustrate how informal dispute resolution processes used in post-separation family disputes can result in compromised outcomes for many women, and consequently for their children also. This article is written from a feminist perspective. It is therefore important also to acknowledge that there are many manifestations of feminism and feminist thought and practice. As it is beyond the scope of the article to explore these, however, the word "feminist" is used here inclusively and with a focus on the common feminist aim; namely, the promotion and protection of the interests of women in the context of redressing the continuing patriarchal oppression of women. This aim is directly related to the protection and promotion of the best interests of children also. This is because women continue in most Australian families, both in intact families and post-separation, to be the primary carers of children. The new family law system's centrepiece involves an expansion of "counselling, mediation and similar services" through newly created Family Relationship Centres around Australia. The Centres will aim to assist parents who have separated to reach agreement about postseparation arrangements in non-adversarial environments. 5 For the sake of brevity, and because the issues and dangers arising for women in these processes are similar in many respects, they are discussed here collectively as "informal dispute resolution processes".
The feminist literature on dispute resolution, both in Australia and internationally, has identified significant concerns about the practical and process disadvantages that women participants potentially face in informal dispute resolution processes. 6 These concerns are particularly emphasised in the context of family mediation and its use in the resolution of post-separation disputes. 7 Some of these disadvantages are discussed in more detail below in order to demonstrate how, for women, informal dispute resolution processes may well merely "substitute another objectivist, patriarchal, and even more damaging form of conflict resolution for (their) adversarial counterpart." 8

A Compromising Justice for Women and Children: Examples of the Disadvantages and Dangers Women Face in Informal Dispute Resolution Processes
Informal dispute resolution processes can only facilitate the reaching of just and fair outcomes for women, and consequently for their children, if the dangers women face in private informal negotiation environments are overtly acknowledged and addressed. There remains, particularly at political levels, an insufficient awareness of the gendered realities time alone with children. They spend nearly half their time with children alone with them, whereas fathers, who spend less time with children anyway, are only alone with the children for 16-18% of that time.
5 Government Response to Every Picture Tells a Story, above n 1, 1; Discussion Paper, above n 1, 1. 6 For example, Murayama refers to the 'universal concern with the fairness of the procedure and in particular outcomes of informal dispute resolution processes for women who participate in such processes. The Government's reforms do not indicate the level of understanding of issues required from the perspective of women and their children. In particular, the policy objective of excluding lawyers from informal justice processes to be practised in the Family Relationship Centres, fails to take account of the additional protection many women participants need to ensure that agreements reached are appropriate, just and fair. The feminist scholarship explored below will make this clear.
Indeed, the knowledge, information and factual bases that underpin the feminist position on informal dispute resolution make it reasonable and necessary for the Government to seriously and substantially revise its approach to informal dispute resolution in the 2005 reforms. The following section briefly discusses two key areas of disadvantage for women in informal justice processes: first, that agreements reached through informal processes cannot be assumed to be consensual. That is, women may often effectively be coerced into agreement. Secondly, that third-party facilitators cannot in reality be considered to be neutral, and this means that patriarchal perspectives can easily enter and even drive informal processes to the detriment of many women.
First, in relation to the process of reaching agreement through informal processes, there is strong evidence to support the notion that women may experience coercion as opposed to consensus. The evidence relates to gendered vulnerabilities in terms of women's social, psychological and economic experience of life post-separation. 9 These vulnerabilities confirm the continuation of patriarchal influences on women's lived experience and paint "a dreary picture of women's position in society". 10 11 Economic vulnerability, or as Kathy Mack puts it the "economic differential", is one of the most significant post-separation problems for women that compromises, for them, the reality of consensual agreements in informal dispute resolution processes. There is evidence that women are usually poorer than men, and that, for example, women continue to earn less than men. 12 It is also known that the concept of the "feminisation of poverty" applies particularly to the post-separation financial situation of women, and compromises their negotiation power in terms of agreement options. Mack, above n 9, 126 where she says: "In ADR, as with any dispute resolution process, the party with greater resources who can hire a lawyer, afford to wait out extended delay and raise more issues will have an advantage over a party who cannot." Issues of poverty impact on the availability of dispute resolution options to parties in dispute. That is, if you are poor you are unlikely to be able to choose to litigate. Difficulties in accessing legal aid exacerbate the dilemma, 14 along with the significant problems associated with parties attempting to self-represent as litigants. 15 For many women the inaccessibility of litigation means, then, that an agreement must be reached in an informal process, whether it is an appropriate and fair agreement or not. It is because women cannot afford to risk not reaching an agreement in an informal process, or risk the potential of the matter being taken to court by the other party, that they may feel coerced into accepting an early settlement reached informally, even if it is one that fails to respect their needs or interests or legal entitlements. 16 The impact of economic vulnerability on the issue of consensual agreement in informal dispute resolution processes is exacerbated by additional difficulties that women face postseparation associated with, for example, their social and psychological situation.
Socially, single mothers experience a status disparity with their former partners. For example, (consistent with what was said above about women generally) single mothers are likely to continue to earn substantially less than their former partner, they will continue to  Having the financial credibility to "threaten to terminate or extend the length of negotiations if the other party fails to meet his demands", inevitably increases the negotiating strength of a male party to post-separation disputes: Bryan, above n 10, 449. 17 bear a heavier parenting and care burden, they will have fewer opportunities to achieve an equal or higher level of education, and are likely to remain at a lower occupational rank. 18 In terms of issues of psychological vulnerability, research has established that women experience higher levels of depression and distress, sometimes associated with learned helplessness and sex role identity, than men; 19 and that "among all marital status categories, depression rates are highest for separated and divorced women." 20 These vulnerabilities work to compromise a woman's ability to participate in consensus bargaining in informal environments because they diminish her negotiating authority and impact negatively on her capacity to engage in constructive problem-solving behaviour as an advocate for her own and her children's interests. They might also be said to compromise both a woman's ability to judge accurately the appropriateness and acceptability of an informally reached outcome, and to diminish any real opportunity she may have to reject an agreement she is not happy with. 21 As Alexander has contended, women may agree to settlements not because they are reached through consensus but because of other factors such as "ignorance, fear, guilt or low expectations." 22 It is right, then, to be concerned that an increased emphasis on informal dispute resolution through the Family Relationship Centres will result in negotiated outcomes that compromise justice for women and their children by directly reflecting the factual circumstances of poverty, and other vulnerabilities that women face post-separation. These are issues that lawyers for women parties in informal dispute resolution processes can help to address.
The second disadvantage for women in informal dispute resolution discussed here derives from the continued centrality of neutrality on the part of the third-party facilitator to assertions and assumptions about informal dispute resolution. 23 This is illustrated by the fact that there are few descriptions of informal processes that do not include a reference to  Neutrality is generally taken to infer in informal processes that third-party facilitators will specifically avoid blaming the parties, and will avoid making judgments about the dispute and the possible options for its resolution. 26 Facilitator neutrality infers respect for the agency of the parties and the idea that families know what is best for them on separation. It also represents fairness and objectivity in terms of approaches to the content of the dispute, and the process used to resolve it. The reality of the concept of neutrality is increasingly being questioned, however, with it now being regarded as somewhat of a myth, at least in its application to third-party facilitators of informal dispute resolution processes. 27 Concern for women, and the potential for the compromise of just outcomes for them in informal processes, arises because we know that third-party facilitator values and judgments can, and often do, enter informal processes. Further, we know that they can directly influence outcomes. 28 Greatbatch and Dingwall have shown, for example, that mediators can use their process skills to selectively facilitate discussion of issues they think should be the focus of negotiations. 29 Research has also shown that facilitator influence may be gendered, and that "women (are) significantly more likely to report that mediators pressured them into agreement or tried to impose their viewpoints on them." 30 The gendered nature of facilitator influence should not surprise us. In contemporary society it remains almost unavoidable that facilitator views and values will be, at least to some extent, patriarchally informed and that they will therefore possibly work to disadvantage women parties.
If we accept, however, that third-party facilitators will inevitably bring their views and values about the position of women in society and what is appropriate for, or to be expected from, women into their professional practice, then we must also recognise the concomitant potential for those views and values to compromise, from the perspective of women, the justice of outcomes reached.
For example, a facilitator who takes the view that issues of violence against women in society are overstated, may well use the future focus of informal processes, and a reliance on the notion of his or her own neutrality, to specifically ignore clear indicators of violence that are working to a victim's disadvantage and disempowerment in negotiations. 31 Further, a facilitator who thinks that fathers should always be assisted in developing arrangements that allow for consistent post-separation contact with their children, may again, simply ignore indicators of violence and direct negotiations to this end. The reform agenda of encouraging equal shared parenting indicates that facilitators in situations such as this will in fact be required to direct discussions in this way. 32 Gendered constructions of, and responses to, women's lives and stories impacts significantly on their ability to represent and advocate confidently for their own interests and those of their children. 33 If the third-party facilitator is gender biased, then a result of that bias, combined with the fact of their influence and control over the process, is that a woman participant in an informal process will most certainly face potential disadvantage. 29 Dingwall, above n 28, 150; Greatbatch and Dingwall, above n 28. It must also be noted that these concerns are certainly not limited to male facilitators -a woman facilitator might equally position herself against a woman party, particularly if she takes the view that the woman party is difficult or uncooperative (behaviour that the stresses associated with the post-separation vulnerabilities discussed above can exacerbate). A woman who gets angry or who swears or who appears to be uncooperative may well be judged negatively by a facilitator of either gender who enters the process with a stereotypical view of what amounts to appropriate feminine behaviour. 34 In fact, informal dispute resolution processes are environments where very restrictive gendered views can go unchecked in terms of what is appropriate or acceptable behaviour for women. 35 It is not possible then, to rely on the notion of third-party neutrality as insurance for appropriate, objective and fair treatment of the parties in informal dispute resolution processes. Indeed, as the discussion above demonstrates, there is wide scope for inappropriate and patriarchal views of women to enter informal processes to their detriment. With an increased emphasis on the use of informal processes through the proposed Family Relationship Centres, and without the protection of legal representation, the breadth of the negative consequences that arise for women and their children, and the implications for the justice of post-separation agreements, are significant. This is an issue that the proposal developed in section 3 below aims to address.

B Compromising Justice for Women and their Children: The Dangers of Rhetoric Not Reflecting Reality With Regard to Victims of Violence in Informal Dispute Resolution
The issues discussed in the above section can be argued as having a generic relevance to women as a gender. They demonstrate the reality of women's potential disadvantage in informal dispute resolution, and justify concern about the reforms as they are currently expressed. This section focuses on a group of women for whom the dangers identified above are manifestly exacerbated; victims of domestic violence.
Importantly, there is now wide acknowledgment that many informal dispute resolution processes, such as mediation, are generally not appropriate where there is a history of domestic/family violence. 36 This is because the ability of a victim of violence to represent 34 Stubbs has said, in terms of how women's behaviour in informal processes might be judged or controlled, that "we shouldn't presume that the informal is necessarily benign or even neutral. What the reforms do not sufficiently recognise, however, is the true complexity of problems for women arising as a result of violence and abuse. This complexity cannot be addressed simply through identification processes such as intake screening, or by limiting victim and perpetrator contact, or by ensuring that facilitators have access to training. The nature and dynamics of a violent relationship create the possibility for significant injustice in negotiated outcomes for victims of violence because of the way in which they undermine the fundamental core values of informal processes relating to self-determination, party referred to as being women. This is because it has long been acknowledged, both by Australian and international research, that "women constitute the large majority of domestic violence victims." -Queensland Domestic Violence Task Force, (1988) "Beyond These Walls", Brisbane: Goprint at 13. "Beyond These Walls" refers to research pre-1988. Further confirmation that women continue to make up the majority of victims of violence can be found in, for example, National It is dangerous for women generally that informal processes can work to ignore the 'power differences between men and women that put women at a disadvantage in negotiating with men.' 42 This danger is clearly increased for victims of violence.
In terms of issues of intake and screening for victims of violence, the reforms place a heavy reliance on the role of Family Relationship Centres in identifying cases involving family violence or child abuse issues; 43 and acknowledge that parents 'can be reluctant to disclose such issues' and that as a result 'parenting advisers will need to be trained to ensure they have skills in identifying them.' 44 It is certainly important that parenting advisors be knowledgeable about violence and its impact on victims and families. It is also imperative that they have skills in relation to identifying matters where there is a history of violence, and are able appropriately to raise these issues with the victim and the perpetrator, without exacerbating the risk of further violence. 45 It is also crucial that intake and screening procedures developed for the processes administered through the Family Relationship Centres are adequate in terms of informing victims of violence about the disadvantages they may face, 46  Elements of the guidelines include that intake officers need to be trained in issues of violence against women and to have good interpersonal skills, at 7; also intake interviews need to be done in person not over the phone and need to be done with the parties separately, at 7. 47 Astor, above n 46, 2: 'The only circumstance where mediation can be considered a viable course of action is where there is free and informed consent by the victim.' For an intake officer to be satisfied of free and informed consent the victim needs to have expressed a clear wish to proceed, she needs to Thorough intake and screening processes are, however, costly, time consuming and resource intensive. Government needs, then, as a part of the reform implementation process, to prioritise an explicit commitment to justice for women and children through adequately funding the development and implementation of best practice intake and screening processes in the Family Relationship Centres.
It is important to note, however, that notwithstanding the current rhetoric about the inappropriateness of the participation of victims of violence in informal justice processes, and notwithstanding the awareness of the potential for severely compromised outcomes and the increased use of screening procedures, many victims continue to participate in informal processes.
There are a number of reasons for this. First, for some time there has been a generally heavy emphasis on informal dispute resolution processes in the context of family law, 48 and when the number of women in the general population increases in these processes, inevitably so does the proportion of victims of violence who are participating. 49 The proposed reforms, even with intake and screening processes, will work to increase that number further.
have chosen to go to mediation -not have been sent (or referred), she needs to indicate a clear understanding of what happens in mediation and what is required of her in the process, she needs to show that she understands the alternatives, she needs to show that she is not under duress or pressure/persuasion from the perpetrator or anyone else to participate, she needs to show that her capacity to make decisions hasn't been affected by the violence, and she needs to show that she's received independent legal advice.' 10-11. See also Hilary Astor, 'Violence and Family Mediation: Policy' (1994) 8 Australian Journal of Family Law 3, 18-19. 48 For example, the 1996 amendments to the Family Law Act 1975 (Cth) in relation to disputes about children have resulted in informal dispute resolution processes becoming dispute resolution processes of first resort. For example s.63B of the Family Law Act 1975 (Cth) states that 'The parents of a child are encouraged: (a) to agree about matters concerning the child rather than seeking an order of the court'. Also under s.60B(2)(d) it is a stated object of Part VII of the Act regarding children that 'parents should agree about the future parenting of their children.' Further Part III of the Act is devoted entirely to 'primary dispute resolution' procedures which include informal dispute resolution processes. S.14(a) states that one of the objects of Part III is 'to encourage people to use primary dispute resolution mechanisms (such as counseling, mediation, arbitration or other means of conciliation or reconciliation) to resolve matters in which a court order might otherwise be made under this Act provided the mechanisms are appropriate in the circumstances and proper procedures are followed'. The fact that the practice directions of the Court include a statement against the use of informal dispute resolution processes in cases where there is a history of violence does not guarantee that this happens in practice. Secondly, we know that social, economic and psychological factors limit the dispute resolution options available to many victims of violence post-separation. Not disclosing or minimising a history of violence may be the only way for a victim to ensure that she has access to a structured assisted dispute resolution process, even if she fully understands, and many victims may not, that her participation in that process, and the fairness of the outcome, are likely to be directly compromised by the history of violence.
For these reasons it is important to recanvass what we know about the disadvantages victims of violence face in informal processes in order adequately to realise the process and outcome protections that can be offered to victims by the presence of a legal representative. As Hart has said, the idea of cooperative bargaining with a perpetrator of violence is an oxymoron. 50 Perpetrators of violence are not able to genuinely cooperate with their victims. Rather they coerce, intimidate, monitor, threaten, devalue their victims and deny their own violence. 51 True consensuality conflicts directly with how perpetrators of domestic violence approach the resolution of disputes. 52 Domestic violence is about the gendered assertion of power and control. 53 When perpetrators of domestic violence are placed in an environment focussed on cooperation and consensuality, there are few constraints on their exercise of that power and little to stop the outcome of the dispute from representing their will and interests, rather than, for example, the best interests of the child/ren, or the mutual interests of the parties. 54 It is also important to note that the perpetrator's control of his victim is most often rooted in his ability to make her fearful. 55 A person in fear of their physical or emotional safety, or in fear of the physical or emotional safety of their children, is thoroughly compromised in terms of her ability to advocate for her own interests in informal processes. When there is no-one else present to advocate for those interests, they are unlikely to find a place in the final agreement. Having a legal representative for the victim playing a role in the Family Relationship Centres would work towards addressing this concern.
Strategies such as shuttle or telephone mediations, that also pertain to address such issues, are based on the premise that if a victim doesn't have to sit face to face with the perpetrator then the imbalance created by the violence is resolved. This is simply not the case, because the effects and impact of violence on the parties' relationship, and their interaction in a negotiation environment, are not necessarily altered by the mere fact of physical separation 50 Hart, above n 37, 320. or by avoiding direct contact. A tone or phrase used on the part of the perpetrator, or mention of a particular issue or incident, can work to instil grave fear in the victim without his being physically proximate. Supported by a legal representative, a victim of violence may be in a much better position to contradict the power of the perpetrator.
Further, concerns about the falsity of facilitator neutrality, raised more generally above, have particular resonance for victims of violence. This is because, notwithstanding their claim to a neutral status, many facilitators also claim that they are able to redress power imbalances between parties. This is said to be achievable using aspects of practice that focus on party empowerment. 56 There is, however, little clear articulation on the part of dispute resolution professionals themselves about how in fact this is done, and there is almost no empirical evidence to support the assertion. 57 The reality is that whatever strategy or intervention a third party facilitator may choose to employ, it is unlikely to be able to reverse what might be years of dominance and control. Facilitators, in the relatively brief time they are with the parties in the dispute resolution process, are simply not able to achieve what might take 'trained psychologists years to accomplish working with violent offenders and abuse victims'. 58 An additional critical dilemma arises for victims of violence in terms of the Government's policy determination in the reforms to ensure that negotiations between separated parents occur as close to the time of separation as possible. This is a time when, in the context of both parties experiencing the stresses associated with separation, the victim could be enduring the full panoply of dangers associated with the power dynamic of post-separation violence. 59 The time of separation and divorce is acknowledged as one of the most dangerous times for victims. This is a time when the perpetrator desperately wants to reassert his power and control over his victim. 60 The reforms will therefore be placing The focus on early negotiation after separation appears to be based on an aspiration to prevent conflict between the parties from becoming entrenched. 61 It is also perhaps linked to the false belief that victims of violence are safe once they have separated from the perpetrator. 62 Both premises indicate a need for the Government's reforms to be more closely informed by what we know about the dynamics of domestic violence. This is because negotiations close to the time of separation are likely only in fact to exacerbate the dangers presented by post-separation violence, 63 and any agreements negotiated in this context are most certainly likely to reflect the will and dominance of the perpetrator and consequently are unlikely to represent safe or just outcomes for victims of violence and their children.
The reforms fail, then, adequately to address the need for substantive protections to be in place for women generally, and for victims of violence more particularly. Section 3 of this article explores one way of achieving some level of adequate practical protection for women in terms of process and outcomes through the proposal to ensure their legal representation in informal processes practised in Family Relationship Centres.

C Compromising Justice for Women and Children: Removing Post-Separation Agreements from the Context of Established Legal Protections
The dangers women face in informal dispute resolution processes impact on the justice of women's experience of those processes and, consequently, impact on the justice of outcomes reached informally. 64 The emphasis in the reforms on informal, private, postseparation dispute resolution where lawyers, and the law, have little or no presence, creates the possibility of moving to a system of family law in Australia where legally established norms, that offer some protection to women and children in the post-separation context, will have little or no relevance to most post-separation agreements. In this way important legal rights that have been obtained for women and their children in the context of family law will potentially be lost or obscured in "the shadows of informality." 65 Post-separation justice for women is removed in this way from the public domain into the private sphere. 66 Of particular concern is the probable detrimental impact on society's awareness of issues relating to the existence and impact of domestic violence on women's lives. Channelling the vast majority of post-separation disputes into informal dispute resolution processes will relegate issues of violence in the family to private negotiation contexts with no formal 61 Discussion Paper, above n 1, 2. protections, and no ability to set precedent or reinforce developing societal and legal attitudes that might work to continue to contradict violence against women. 67 There is a significant likelihood, therefore, that the inherently political nature of violence will be lost in the privacy of informal dispute resolution processes. 68 As Hilary Astor has warned, removing family disputes into the private sphere of mediation, for example, will work to undermine "efforts to expose the relevance of power differentials between men and women." 69 Further, the current accompanying reform focus on promoting unrealistic notions of equality in post-separation parenting, creates a significant chance that the politics of powerthrough-violence in the family will be recast in informal negotiations as 'individualised instances of miscommunication or misunderstanding.' 70 The private nature of informal dispute resolution processes also results in their having little accountability in terms of how women, and in particular victims of violence, are treated during the process, or in terms of the appropriateness of informally reached outcomes. Informal dispute resolution processes occur behind closed doors, with no public record of what has been said, or necessarily of the outcome, and no real way to address any injustices suffered, for example via appeal. 71 Rather, key issues of justice for women in family law will be entrenched in unscrutinized contexts away from publicly accountable systems. 72 The private nature of informal dispute resolution processes and the unregulated nature of, for example, the mediation profession in Australia mean, also, that in most instances there is little available protection of the parties' interests against any misuse, or inappropriate use, of facilitator power. Third-party facilitators are, in fact, overtly protected by the "selfdetermination" and "party empowerment" rhetoric of informal processes that places responsibility for outcomes and agreements squarely in the hands of the parties.
As Abel has noted, the informal nature of processes like mediation 'obviates the need for the full panoply of procedural and constitutional protections.' 73 This can be contrasted with litigation, for example, where to some extent, the rights and interests of the parties are protected from misuse of judicial power. 74 The proposal articulated below aims to address some of the dangers presented for women parties by the private nature of informal dispute resolution processes, through the The issues raised above confirm a need for careful measures to ensure that the informal dispute resolution processes practised in the proposed Family Relationship Centres are able to deliver equitable process and outcomes for women participants and their children. It is argued that these aims are more likely to succeed through the inclusion of lawyers in a role that offers coaching, support and advocacy for women parties. 75 This approach draws on the protective benefits to women offered by legal representation, which are supported by feminists such Martha Fineman, and are known to be particularly important for victims of violence. 76 It is acknowledged that this proposal requires a significant funding commitment from Government. 77 The making of such a commitment would constitute, however, an appropriate investment in the fairness and justice of the reform outcomes. Support for the legal representation of women parties in Family Relationship Centres would ensure a significant response to the issues and concerns for women in informal dispute resolution processes discussed above. As such, the adoption of this simple measure in the proposed reforms could provide for a model that would represent both a positive development in the creation of the new system of family law, and also a fundamental commitment to the protection of women and children and their post-separation interests.

D Lawyers Assisting Women in Informal Family Dispute Resolution: Coach, Advocate and Support
This section discusses some benefits and practical issues associated with including lawyers in the informal processes to be practised through the Family Relationship Centres. The proposal here is made specifically in relation to the provision of a lawyer for women parties. This is based on the depth and breadth of the issues of disadvantage arising for women in informal dispute resolution environments, and particularly for victims of violence (only some of which have been discussed above). The proposal here does not preclude the presence of a lawyer for the male party, but does not presume, either, that equal representation is provided. This is based on the clearly gendered nature of the 75 McKay has discussed the following roles for lawyers in mediation: 'They may represent parties in the mediation performing a less aggressive more conciliatory role than that required in a formal proceeding. In other circumstances the lawyer may simply advise the client in advance of the mediation or serve during the mediation as a silent adviser mindful of the fact that mediation is a process by which the parties seek a resolution through their own efforts. ' difference of experience of informal justice processes, and on a prioritisation of the allocation of scarce resource funding to the party most in need.
It is an important proviso in relation to this proposal that in bringing their expertise and assistance into the informal dispute resolution environment as the woman party's legal support and advocate, and in working to protect the woman and her children's interests, the woman party's lawyer does not allow the environment to become a courtroom-style contest. 78

A Lawyer's Potential in Preparing Women to Participate Effectively in Informal Processes
The role of the lawyer advocate for women prior to the commencement of informal dispute resolution processes would be focussed on assessing the risk the process poses for the client, preparing the client with information about the process, providing her with some skills for her participation, and beginning a process of generating satisfactory options for the resolution of the dispute. Samuels and Shawn refer to this preparatory interaction between the lawyer and client as 'the beginning of a relationship of trust and confidence'. 79 A risk assessment of a potential informal process is of key importance if a party is to be in a position to make an informed decision to participate. An informed decision to participate is central to her being able to engage in the process competently and effectively, and involves a preliminary 'balancing (of) the client's strengths and weaknesses against those of the other spouse'. 80 The risk of informal processes must also be balanced against the risks present in any alternative options available. 81 The provision of clear and detailed information about the processes practised in the Family Relationship Centres will perhaps be 'the most important aspect' of the lawyer's role in preparing clients. 82 As the NCVAW intake recommendations indicate, this sort of advice and information is particularly crucial to fair participation in informal dispute resolution processes by victims of violence. 83 It is because intake officers and facilitators are not, practically or ethically, in a position to provide individual participants with the depth of information necessary to ensure specifically party-contextualised understandings of process, that it is appropriate for this task to fall to the woman party's legal representative.
Providing participation skills to the client can also be understood in terms of a coaching role for the woman party's lawyer. This clearly requires that lawyers involved in this model have a good understanding of, and ability to practice, informal negotiation skills themselves. It is imperative that lawyers engaged in this model also have a thorough understanding of issues relating to domestic violence, the impact of violence on victims and Ibid. 83 Astor, above n 46. on a victim's capacity to engage in negotiations. Susan Gribben has written that the benefit of coaches applies especially where there is a history of domestic violence. 84 Coaching can involve teaching women a variety of abilities and attributes relating to consensual bargaining processes. For example, abilities in terms of identifying their key needs, interests and issues, assertiveness skills, 85 86 active listening skills, ways of maintaining confidence and self-esteem throughout the process, and ways to adopt protective behaviours. 87 A lawyer would also assist their client in identifying and exploring 'the worst, best and possible outcomes' and 'ways of achieving (their) desired outcomes and priorities.' 88 Whilst the woman herself would remain the decision-maker on any agreement, just outcomes are more likely to result if the lawyer has assisted in the generation of a spectrum of appropriate and acceptable options and alternatives, as well as a 'benchmark against which to compare an emerging settlement', 89 and strategies for dealing with the other party's 'last gap' in negotiations. 90

A Lawyer's Support and Advocacy Role to Facilitate Women's Effective Participation in Informal Processes
As a woman's support person and advocate in the informal processes practised through the Family Relationship Centres, lawyers could have a number of significant contributions to make, all of which allow for the protection of the interests of women and their children, and the pursuit of just and appropriate negotiated outcomes.
Essentially the key element of this role is to provide assistance to women through the course of the process, as required. 91 This assistance could take various forms depending on the needs and skills of the woman and her capacity to engage in an informal dispute resolution environment. It is likely that the assistance would at the very least take the form of a supportive presence, the speedy provision of appropriate advice where it is requested, and the affirmation of her own abilities.
It is also important, particularly in relation to victims of violence, that the lawyer would be in a position to redress, at least to some extent, inequalities in bargaining power. This might be done by naming those situations where the imbalances impede the potential justice of negotiated outcomes, by taking some level of control over the content of issues in discussion, or by contributing to the way the process is managed. For example, the lawyer could insist where necessary that several short sessions take place rather than one exhausting and lengthy one; and they could ask for a break, or for some time out, or for a private session with the facilitators when pressure from the male party is resulting in the woman losing energy for the negotiations. Further, a lawyer could assist a woman party by taking responsibility, where necessary, for advising that it is appropriate to withdraw from or terminate the process. 92 In the event that the woman feels she has lost the confidence or assertiveness necessary to negotiate effectively, the lawyer may assist with the expression of her position and her response to the other party's communications. 93 The lawyer could also be called upon to take a more active role in assisting the women by clarifying issues, 'ensuring the discussions stay on track', 94 95 acting as a 'second pair of ears', working with her on alternatives to proposals made by the other party, and through applying the lawyer's legal knowledge and expertise to the process of 'bargaining in the shadow of the law'. 96 In this way the woman will be more able to contradict, for example, inaccurate assertions on the part of the other party about his legal rights and entitlements. 97 The final key role of the lawyer advocate is that of protecting and promoting the woman's interests, and those of the children, in relation to advising on the detail of any final agreement. 98

99
The balance here is to assist women in terms of pursuing what is equitable, whilst also acting on their instructions, 100 and remaining flexible to just and appropriate agreement possibilities that are nevertheless outside legal remedial norms. It would be appropriate for a lawyer to use a private session with the woman to discuss any offers for agreement and to determine whether or not they are appropriate. 101 The lawyer can also act as an 'agent of reality' in relation to possible agreement options by helping to test their strengths and weaknesses. 102 Altobelli believes that lawyers have particular skills in terms of 'turning decisions into workable plans.' 103 These skills allow the lawyer to provide assistance in the process of drawing up the agreement 104 to ensure that it accurately represents what has been agreed between the parties.  97 Murayama comments on the empowering aspect of the knowledge of legal rules and principles that lawyers can bring to informal dispute resolution processes which provides at least a sound and objective baseline for negotiations: Murayama, above n 6, 73.

The Lawyer Advocate's Post-Process Role
Although the reforms do not appear to support the formalisation of parenting agreements it is argued that this provides parties with security in relation to what has been agreed. In order to provide this security, the role of filing consent orders is one that the lawyer for the woman party could fulfil, with the male party benefiting from this also.
Where the informal dispute resolution process has been unsuccessful or no agreement has been reached, the lawyer also has a role in terms of ensuring that the woman is safe in the period immediately after the dispute resolution session; and that she is advised of future options.

E Addressing Concerns about Involving Lawyers in Informal Dispute Resolution Processes
The reform documents present the view that lawyers will inevitably make the processes practised in Family Relationship Centres more adversarial. However, lawyers have argued for some time that they have an important role to play in informal dispute resolution processes generally, 105 and the idea of lawyers fulfilling the role of mediator, for example, is now relatively well accepted. 106 There are, indeed, a number of reasons why a model of informal dispute resolution that creates a role for a legal support and advocate for women parties, and particularly for victims of violence, should be accepted.
Ellen Goodman, for example, has argued that lawyer involvement has the potential to help mitigate issues such as an ignorance of the law, lack of assertiveness, lack of self-esteem and an inability to articulate persuasive and compelling arguments on the part of a party. 107 Murayama has also found in a study of Japanese divorce matters that legal representation in informal dispute resolution processes correlates consistently with just and fair outcomes, 108 105 Professor David has commented that 'as lawyers we need to ensure that we retain our pre-eminent position as dispute resolvers and that we are not by-passed by other professions or by other organisations providing dispute resolution services that are more relevant for the 1990s. particularly in terms of the absence in the outcomes of any reflection of the actual power relationship between the parties. 109 It must nevertheless be acknowledged that opposition to the involvement of lawyers in informal dispute resolution processes, such as that apparent in the reforms, is supported by some commentators. 110 Many of these concerns, however, can be answered by consideration of the fact that contemporary lawyers possess a diverse skill base that extends beyond the adversarial and litigious and is most certainly relevant for positive participation in informal dispute resolution processes. 111 Further, the inclusion of alternative dispute resolution subjects in legal education curricula now means that many lawyers are formally educated about non-adversarial principles and approaches for dispute resolution. 112 These developments in legal education reflect a broader changing legal environment that is requiring lawyers to be aware of, and conversant with, informal dispute resolution process techniques and practices across a huge range of legal disciplines from commercial law to criminal justice. 113 It must also be remembered that whilst lawyers may be trained to be able to represent their client's interests in adversarial environments, they are not thereby unavoidably unable to appreciate non-adversarial procedures and dispute resolution methodologies. Sordo has commented that only 'a small percentage of lawyers are more comfortable with a traditional adversarial formal dispute resolution approach. ' 114 It is also important to acknowledge that the ability of a lawyer to alter inappropriate power dynamics between the parties by injecting the authority of the law, is a part of the positive protection that a legal advocate can offer women, and particularly victims of violence, through their presence in the Family Relationship Centres' processes. One of the achievements of legal representation in this context is to empower women in taking control of their role in dispute negotiations through an awareness of their rights and the FIELD (2005) confirmation of their confidence to pursue an outcome that is consistent with their interests and those of their children.
It is acknowledged in making this recommendation that an awareness of the current limitations of some lawyers' knowledge of issues for women, and particularly of issues relating to domestic violence, is important. In particular, Nan Sueffert's work with women in New Zealand indicates a need to develop the understanding that many lawyers have of the dynamics of domestic violence. 115 This is a matter then for legal education, both at the tertiary level and within the profession. Nevertheless it should also be acknowledged that, in general, lawyers have particular skills in 'providing for participation on an equal basis,' 116 and that 'because of their experience in negotiation, (lawyers) are sensitive to issues of both power and rights.' 117

IV CONCLUSION
A critical perspective on informal dispute resolution processes, such as that articulated here, can be confronting for those who want to see informal dispute resolution as an answer to the problems posed by adversarial approaches to family law disputes. The ability of Government, for example, to promote informal processes as uniformly balanced, equal and level negotiation fields is challenged by being explicit about the possible disadvantages that women can face.
If women are to be assisted in reaching fair post-separation agreements that support the best interests of their children through the proposed Family Relationship Centres, it is essential that our knowledge of issues for women in informal dispute resolution contexts is used to inform the family law reform agenda. It is certainly true that if the disadvantages and dangers for women participants are addressed that informal dispute resolution in the context of family disputes can potentially be used appropriately and safely. However, the 2005 reforms create the possibility for women and their children to be seriously disadvantaged because the heavy emphasis on informal dispute resolution is not accompanied by a sufficient acknowledgement of the dangers women may face.
This article proposes one way of making the approach to a new family law system in Australia equitable for women, and particularly for victims of violence, through providing a lawyer for the woman party to assist in the post-separation negotiation process. The role of the lawyer would be to prepare women for informal dispute resolution processes, to help represent and protect their interests during the process where necessary, and also to assist women with the terms and filing of a final agreement.
This proposal, through promoting the presence of a legally trained representative for women, addresses some of the many serious risks women can face in informal processes. It 115 Nan Seuffert, 'Locating Lawyering: Power Dialogue and Narrative ' (1996) 18 Sydney Law Review 523. 116 Altobelli, above n 94, 229. 117 Altobelli, above n 94, 230, raises an important issue from the perspective of victims of violence, namely, that it can be argued that 'the legal profession has a history of accepting the responsibility for protecting the rights of traditionally disempowered members of society.' also contributes to ensuring that fair and appropriate outcomes are reached through the processes to be administered by the proposed Family Relationship Centres.
A lawyer's involvement in informal family dispute resolution processes presents far greater opportunities for making these processes more equitable than it does threats. However, the costs associated with involving lawyers in this way requires a serious resourcing commitment from Government informed by an understanding of the many issues of disadvantage that women may face. In making this commitment the Government could clearly demonstrate an intention to work towards reducing the potential for unjust and inappropriate outcomes for women and their children in post-separation disputes.