Publication Details

E. Marchetti & R. Downie, 'Il ruolo della mediazione nei casi di violenza familiare: L’esperienza delle corti indigene' in E. Urso(ed), Le ragioni degli altri. Mediazione e famiglia tra conflitto e dialogo: una prospettiva comparatistica ed interdisciplinary (2013) 391-404.


In the past 15 years, Australian family law has placed an emphasis on alternative methods of resolving disputes before resorting to litigation, particularly when children are involved. This change in practice has seen an increase in the number of couples who use alternative dispute resolution, which is referred to in federal family law legislation as ‘family dispute resolution’ (FDR). This chapter considers the appropriateness of using FDR for couples that are engaged in a relationship that is impacted by family and domestic violence. The most common form of family and domestic violence is Intimate Partner Violence (IPV), and as such, the focus of this chapter will be on the appropriateness of using FDR when intimate partner violence is evident. Some scholars encourage the use of alternative dispute resolution processes where the victim has been subjected to IPV, because they believe that such a process can empower the victim (who is, more often than not, the female in a heterosexual relationship) by giving her the opportunity to participate in the process and by allowing her to tell her story, something, which does not occur in the adversarial process. Others believe that alternative dispute resolution, while useful for many different types of disputes, is not suitable for matters involving IPV because of the presence of complex power imbalances that are normally part and parcel of such violence. There are strong philosophical arguments for and against the use of FDR (and other alternative dispute resolution practices) for cases involving IPV and very little empirical evidence to support either side of the argument. In looking to alternative models of dealing with disputes where IPV is present, we use Australia’s Indigenous sentencing courts as an example of a forum where offenders, victims, community members and justice personnel come together to discuss the relational and personal issues of the parties involved, in order to formulate positive and meaningful outcomes. The communal nature of Indigenous sentencing courts may offer some valuable lessons for FDR and other alternative dispute resolution practices when used to resolve family law disputes that contain evidence of the existence of IPV.