The ADR Research Network is a group of Australian dispute resolution academics. Blogging & tweeting high quality, critical dispute resolution scholarship.
Dr Becky Batagol is an Associate Professor of law at the Faculty of Law, Monash University.
She is a researcher and teacher with a focus on gender, family law, family violence, non-adversarial justice, dispute resolution, gender, child protection and constitutional law.
Becky is the co-author of Non-Adversarial Justice (2nd ed, 2014), Bargaining in the Shadow of the Law? The Case of Family Mediation (2011) and the author of many academic articles.
Becky, alongside Dr Jessica Mant, is the President of the Australian Dispute Resolution Research Network in 2024-25.
There’s still time to get your abstract in! Please submit your abstract by 3 November 2025.
The Australasian Dispute Resolution Research Network is pleased to be hosting its 13th research roundtable on 27-28 November 2025 at Monash University Clayton campus, Melbourne. The roundtable is supported by the Faculty of Law at Monash University and the Australian Centre for Justice Innovation.
We are accepting paper proposal’s for the Roundtable until Monday 3 November. We welcome proposals that consider dispute resolution from a scholarly, critical and/or empirical perspective. Topics can be addressed for any disciplinary perspective and we are especially interested in interdisciplinary approaches to dispute resolution. We particularly encourage submissions from postgraduate students and early career researchers. All proposals will be considered. Papers must not have been published or submitted for publication, as the focus is work in progress.
Attendance is only open to individuals who are contributing to the scholarly discussions by presenting a paper, or commentating and/or chairing a session. So please submit an abstract!
The Australasian Dispute Resolution Research Network is pleased to be hosting its 13th research roundtable on 27-28 November 2025 at Monash University Clayton campus, Melbourne. The roundtable is supported by the Faculty of Law at Monash University and the Australian Centre for Justice Innovation.
The roundtables are designed to encourage a collaborative and supportive research environment in which papers are work-shopped and discussed in detail. Papers in draft form are distributed one month ahead of time to participants, to enable thoughtful and constructive quality feedback.
We welcome proposals that consider dispute resolution from a scholarly, critical and/or empirical perspective. Topics can be addresses for any disciplinary perspective and we are especially interested in interdisciplinary approaches to dispute resolution. We particularly encourage submissions from postgraduate students and early career researchers. All proposals will be considered. Papers must not have been published or submitted for publication, as the focus is work in progress.
There will be a limited number of papers accepted for inclusion in the roundtable discussions. A panel will select roundtable papers from abstracts submitted. The aim is to be as inclusive as time and numbers allow. The following selection criteria will be applied:
Papers take a scholarly, critical and/or empirical perspective on an area of dispute resolution;
The roundtable will include a spread of participants across stages of career; and
A well-balanced range of work will be presented at the roundtable to provide diversity, to develop the field and to enable cohesive discussion.
Participation is on a self-funded basis.
We will also be asking you to draft a short (1,000 words max) blog post about your paper prior to the roundtable. Our blog reaches over 17,000 individuals per year and has over 25,000 hits – so your blog will be widely read. You will have a chance to fix up your blog post after the roundtable in case you’d like to make any adjustments after feedback.
On the day, speakers are given up to 30 minutes for presentation, with 30 minutes for feedback and discussion. Two primary commentators will be appointed for each paper.
Attendance at the Round Table is only open to individuals who are contributing to the scholarly discussions by presenting a paper, or commentating and/or chairing a session.
About the Australasian Dispute Resolution Research Network
The Australasian Dispute Resolution Research Network brings together leading dispute resolution scholars and provides a collaborative environment to foster, nurture and enrich high quality research and scholarship. The Network is inclusive and forward-looking and seeks to bring together emerging, mid-career and established scholars to build excellence in the field and provide peer support. Network activities are expressly designed to provide a supportive and collegial presentation environment in which meaningful discussion and constructive feedback is provided to the presenter.
Network activities include maintaining the ADR Research Network blog at www.adrresearch.net on Twitter and conducting annual scholarly round tables of work in progress since 2012.
Membership of Australasian Dispute Resolution Research Network
We don’t like hierarchies or unnecessary administration, so we don’t have any membership list or legal organisational framework.
The way to become a member of the ADR Research Network is to subscribe to the blog. This is our primary means of communication.
Subscription will mean that every time a post is made on the blog you will receive a notification alert to your email address. Other ways to follow blog activity is through Facebook ADR Research Network page and Linked In discussion group but engagement on these platforms is not necessary to keep track of blog activity.
This post is part of a series of the best blog posts written by undergraduate law students enrolled in 2024 in Non-Adversarial Justice at Monash Law.
The establishment of the Yoorrook Justice Commission in 2021 as Australia’s first formal truth-telling process into historical and ongoing injustices experienced by First Nations people marked a significant milestone in the nation’s journey towards reconciliation. Before it publishes its final report later in 2025, it is time to reflect on the Commission’s contributions and whether it has fulfilled its ambitious mandate.
Chaired by Professor Aunty Eleanor Bourke, a Wergaia/Wamba Wamba Elder, the Yoorrook Justice Commission was established in May 2021 with a mandate to investigate systemic injustice through First Nations people’s stories, experiences and concerns. A key goal in the mandate was to determine the causes and consequences of systemic injustice (including the role of State policies and laws), and to determine which entities bear responsibility for the harm suffered by First Nations people. In practice, the Commission had a critical focus on child protection and criminal justice systems, both of which are long-standing sources of trauma for First Nations communities as a direct result of colonisation. Now, with the hearing process complete, the Commission’s success can be qualified by its reception by the public, and most importantly, First Nations leaders and communities.
Significance of the Commission’s success
The deep-rooted trauma experienced by First Nations people is a backdrop to legal disputes in many jurisdictions, with a particularly pronounced effect in Australia. In addressing this issue, the Yoorrook Justice Commission has garnered attention for its use of trauma-informed platforms to listen to people’s stories in a receptive and understanding way.
Importantly, the success of this approach is not limited to First Nations matters. On a general scale, the Commission is a good demonstration of how processes aimed at bringing people together can help to address complex issues, including those involving significant trauma.
Emotionally informed approach to truth-telling
An overarching success regarding the Commission’s hearing process was the use of a social and emotional wellbeing support model, to avoid re-traumatisation of vulnerable communities. This emotional sensitivity encouraged engagement by First Nations people, ensuring their voices were heard across each Traditional Owner country in Victoria. By engaging with this broad range of communities, the Commission ensured its work was widespread and inclusive.
A significant outcome of this emotionally-driven hearing process was (then) Victoria Police Chief Commissioner Shane Patton’s apology in his witness testimony, acknowledging that police uniform was a ‘symbol of fear’ for First Nations people. He renewed a commitment to eliminating bias and racism against First Nations people within police ranks, and bluntly admitted to having no First Nations-led services in the department. This public admission brought the existence of inequalities to the forefront of public consciousness, where they may otherwise have been viewed as ‘consigned to the past’. From this perspective, the Commission’s public engagement with responsible institutions has launched critical steps towards the genuine reconciliation aspired to by the mandate.
Focus on child protection and criminal justice systems
The Commission’s most prominent area of inquiry has been into child protection and criminal justice systems, through the Yoorrook for Justice Report. This report exposed how Western conceptions of family continue to perpetuate racist systems of child removal – echoing the trauma associated with the ‘stolen generation’. In the report, the Commission called for significant changes such as transferring decision-making power, control, and resources to First Nations people in these systems. The report also recommended abolishing detention for children under 16 and urged Victoria Police to consider the unique backgrounds and systemic factors affecting First Nations people when making decisions. By identifying and addressing how interactions with the police significantly contribute to perceived systemic injustice, these recommendations directly respond to the mandate. However, despite the promising narrative propagated by the Commission, these recommendations have been met with substantial controversy – both by the public and by the government in response.
Criticism of the Commission
Overall, the Commission has indeed been met with support from the public. As stated by Uncle Bobby Nicholls, a Yorta Yorta, Dja Dja Wurrung and Wadjabalok man and previous Director of the Victorian Aboriginal Child Care Agency, ‘With Yoorrook, that gives me faith that we will get answers’.
However, criticism of the Commission’s work has appeared from both First Nations people and other Australian voices. Chris Meritt from the Rule of Law Institute of Australia criticised how the Yoorrook recommendations to introduce a First Nations-led system ‘would entrench racial division’, and how a ‘narrative of victimhood was set in train from the very beginning’ through the mandate itself.
While this opinion is rooted in the European-Australian ‘rule of law’, its criticism of ‘victimhood’ is shared by several First Nations perspectives. For instance, Nyunggai Warren Mundine, a Yuin, Bunjalung and Gumbaynggirr man and Executive Chairman of Nyungga Black Group Pty Ltd, has condemned the recommendation that the state’s police commissioner should understand the ‘role of Victoria Police in the dispossession, murder, and assimilation of First Peoples,’ by accusing the Commission of adopting a ‘grievance and victim approach.’ Mundine argues that such recommendations do not contribute to constructive solutions, and should instead consider the actions by First Nations people that cause them to be incarcerated: ‘What we look at in this area is the wrong target. People look at incarceration rates. We should be looking at lowering crime. The majority of those in prison are there for serious violent crimes.’ Similarly, Dr Anthony Dillon, who identifies as an Aboriginal Australian man and is a researcher, commentator and practicing psychologist at Australian Catholic University, has described some of the recommendations as ‘way over the top,’ suggesting that allegations of racism can sometimes distract from the harm First Nations people inflict on each other. These perspectives suggest that the root cause of First Nations people’s aggravated experiences in Australian legal system may go beyond what is acknowledged by the Commission.
From yet another First Nations perspective, some agree with the Commission’s routes of inquiry, yet question the constrictive framework for such an ambitious mandate. Marcus Stewart, Nira illim bulluk man of the Taungurung Nation and the inaugural Co-Chair of the First Peoples’ Assembly of Victoria, encompassed this in the hard-hitting question: ‘How in a three-year period do you unpack 200-plus years of the impacts of colonialisation?’ This rushed investigation period may have further limited the depth of inquiry available to the Commission.
Despite these concerns about the institutional motivations and implementation of the Commission, Yoorrook continues to demonstrate a promising sense of integrity as an independent body. The Commission has already obtained a year extension for its inquiries, and requested law-making to facilitate its operation, such as preserving confidentiality of truth-telling for at least 99 years.
However, while the Commission represents a first step to cultural change, true success will only be achieved if the government is willing to rectify systemic issues – something that appears to be in question.
Disappointment with government response
Although the Commission’s activities in isolation have been generally well-received, the public has expressed disappointment surrounding the dissonance between the Commission’s objectives and government action. The Allan Government has responded to Yoorrook’s 2023 Report with full support of less than 10% of the recommendations, and ‘in principle’ support of only half. The government fully rejected three recommendations, including modifications to bail laws and raising the minimum age of criminal responsibility.
This unwillingness to support Commission-led changes has been met with backlash. The Victorian Aboriginal Legal Service stated the response was ‘unworthy of the heart wrenching truths that were told at the Yoorrook Justice Commission’. According to Nerita Waight, Yorta Yorta and Narrandjeri woman with Taungurung connections and CEO of the Victorian Aboriginal Legal Service, ‘Promises have been delayed or shelved, and there’s no clear direction coming from the Government.’
The government’s reluctance to implement change poses a significant hurdle for the continuation, and ultimate success, of the Commission’s objectives – as well as First Nations confidence in the state government.
Far from a failure
The above criticisms and reluctance to follow Commission recommendations clearly mark a dissonance between the aspirational approach of the Commission and the actual bandwidth for change within the existing system.
However, even in these circumstances, it is important to recognise the Commission’s pioneering success in initiating dialogue about truth and reconciliation in Victoria. Its underlying motivation is to distil issues as perceived by First Nations people, acting as a mouthpiece for First Nations interests. If the resulting message speaks of trauma, rage and victimisation, even if not immediately actionable within the current framework, the Commission can nonetheless be seen as fulfilling its purpose by relaying it to the government.
The Commission holds the confidence of many First Nations peoples. There is strong hope for the future of including First Nations perspectives in policy-making.
All Victorians have been invited to join Kerrupmara Gunditjmara, Yoorrook Justice Commission Deputy Chair, Travis Lovett in the Walk for Truth to walk 370 kilometres from Gunditjmara Country in Portland to the Victorian Parliament on Wurundjeri Woi-Wurrung Country in May and June 2025. The walk will bring together people from all walks of life to build shared understanding. It will create a space for people to have meaningful conversations, share stories, experiences and knowledge, and learn and explore more about the importance of truth telling in the State of Victoria. You can register here.
About the Author
Imogen Stephenson is a final-year student at Monash University, studying a double degree in Law (Hons) and Physics (Hons). She currently works as a paralegal in Intellectual Property at Corrs Chambers Westgarth and performs clinical data analysis at Cyban. She has developed a keen interest in non-adversarial justice and therapeutic dispute resolution through her studies with Associate Professor Becky Batagol at Monash.
This post is part of a series of the best blog posts written by undergraduate law students enrolled in 2024 in Non-Adversarial Justice at Monash Law.
The criminal justice system often leaves victim-survivors feeling that they themselves are on trial, paving the way for Restorative Justice (‘RJ’) to emerge as a compelling alternative. However, is RJ suitable for responding to sexual violence? More importantly, does it resonate with the experiences of First Nations women, who are significantly overrepresented in sexual violence statistics?
The Australian Law Reform Commission (ALRC) yesterday released its report, Safe, Informed, Supported: Reforming Justice Responses to Sexual Violence, recommending use of RJ in some sexual violence matters. In particular, the ALRC recommends funding for First Nations communities to design, build, and deliver accredited restorative justice programs for First Nations people (recommendation 63).
This blog post explores the extent to which RJ can effectively respond to sexual violence, and how it can be implemented to respect First Nations women’s experiences. We hope the ALRC’s proposals lead to prioritising First Nations voices in discussions around RJ as a response to sexual violence.
Due to the limited availability of direct testimonies, this post primarily draws on general perspectives of First Nations women gathered from reports by First Nations organisations and the Wiyi Yani U Thangani (‘Women’s Voices’) project.
The need for an alternative justice response
First Nations women experience sexual violence at a rate approximately three times higher than non-Indigenous women. This alarming statistic both stems from and perpetuates the ongoing negative impacts of colonisation, which have resulted in increased socioeconomic disadvantage and intergenerational trauma.
The criminal justice system often compounds this issue, by failing to provide an adequate response to First Nations women. A staggering 90% of violence goes unreported due to a fundamental fear of the police, compounded by police inaction and discriminatory decision-making. First Nations women describe their interactions with the justice system as having exacerbated the impacts of violence and worsened their trauma. Research shows that typical ‘Western’ responses to sexual violence, including the current criminal justice response, are often ineffective for First Nations communities.
The question then becomes whether alternative forms of justice, such as RJ, can provide a better response to sexual violence.
What is RJ and how can it respond to sexual violence?
RJ is multifaceted concept, sometimes perceived as confusing and incoherent. The Australian Law Reform Commission defines RJ is a ‘victim-centred, party-led process’ focused on identifying and addressing the harm caused by the offence and exploring options for repairing that harm’. Unlike the criminal justice system, which prioritises punishing the offender, RJ is designed to address the victim-survivor’s needs and experiences. It typically involves a voluntary and confidential dialogue between the victim-survivor and personal responsible.
The use of RJ in cases of sexual violence has sparked debate. Proponents argue that RJ can meet the complex needs of victim-survivors in ways the criminal justice system often cannot. For instance, victim-survivors often need to tell their story in their own words, have their story believed, and ask the person responsible any unresolved questions, and see them take accountability. RJ can provide a platform for these needs to be met.
However, critics are concerned that RJ risks re-privatising and decriminalising sexual violence. It may be seen as a ‘soft’ approach that diminishes the seriousness of sexual violence. Given that persons responsible often abuse the trust of victim-survivors, there are concerns that they might exploit their position of relative power in the RJ process and further harm victim-survivors. Additionally, RJ processes might not be culturally appropriate for some participants and might face challenges with linguistically diverse individuals.
Conclusively determining the effectiveness of RJ as a response to sexual violence is difficult due to the limited number of peer-reviewed studies. However, the risks of RJ are real and should be managed through a well-designed principle-based approach.
Voluntary participation: Participants join voluntarily and can leave at any point.
Accountability: The person responsible must be truthful and admit to their actions.
Prioritising victim-survivors: RJ processes should prioritise the victim survivor’s needs and interests.
Safety and respect: RJ processes should adapt to different needs, with power imbalances addressed and skilled experts in sexual violence involved.
Confidentiality: What happens during RJ remains strictly confidential.
Transparency: Anonymised data is used to continually improve RJ processes.
Integrated justice response: RJ processes should work alongside the criminal justice system and therapeutic services.
Clear governance: Legislation should empower and oversee RJ.
Adopting a RJ model based on these principles shows promising potential for dealing effectively with sexual violence. The question then, is how might it be successfully implemented for First Nations women?
RJ and First Nations women: a potential solution
Research in the context of family violence indicates that First Nations women tend to favour RJ more than non-First Nations women. This preference is linked to their perception of the criminal justice system as oppressive and contributing to the violence against them. First Nations women interviewed by Heather Nancarrow expressed optimism that RJ processes could empower them. They believed that involving their families and broader community in RJ would lead to successful outcomes. A practical model for this might involve Elders and respected members of First Nations communities on an expert panel that conveners in the RJ conference could consult with.
By offering opportunities for self-determination that respect cultural values, RJ might help First Nations women feel empowered, and lead to more meaningful resolutions to sexual violence.
RJ and First Nations women: challenges and concerns
Despite these potential benefits, the application of RJ must carefully navigate concerns raised by First Nations women. There are significant fears that RJ processes could inadvertently perpetuate harm rather than heal it. Some women fear that RJ, if not carefully managed, might become a vehicle for reinforcing power imbalances within their communities or become another ‘white justice model’ that doesn’t fully respect or address their needs.
There are also concerns about how RJ might be received within their communities. Concerns include the potential for male leaders or community members to misuse the RJ process to their advantage, or for cultural arguments to be employed in ways that undermine victim-survivors’ needs.
For RJ processes to be an effective response to sexual violence, it is crucial to design them with these risks in mind and establish strong safeguards.
What needs to be done?
To effectively implement RJ for First Nations women, a collaborative design process involving meaningful engagement with their lived experiences is vital. Many First Nations organisations, such as Djirra, stress that any RJ model must be co-designed with First Nations women to ensure it is sufficiently sensitive to their needs and does not become another mechanism of oppression. It is necessary to hear from First Nations women directly to identify the wellbeing, safety, procedural and privacy aspects they might need for an RJ model to work.
Ultimately, the potential benefits of RJ as a response to sexual violence appear to outweigh the challenges, provided a principle-based approach is implemented to address the risks. RJ offers a promising alternative to the criminal justice system for addressing sexual violence against First Nations women. Its success, however, depends on the active participation of families and communities as well as the establishment of a culturally safe environment. Through a collaborative design process, RJ has the potential to be a powerful response to sexual violence that aligns with the experiences of First Nations women.
ChatGPT (version 4.0) was used to check grammatical errors and suggest improvements in writing style in this blog post.
About Lavanya de Mel
Lavanya is a final-year law student at Monash University, minoring in Economics and Business Strategy. She is passionate about improving access to justice for culturally diverse and socioeconomically disadvantaged individuals. Later this year, she will begin her legal career as a graduate lawyer at a commercial law firm, where she hopes to explore the role of alternative dispute resolution in a commercial context.
This post is part of a series of the best posts written by undergraduate law students enrolled in 2024 in Non-adversarial Justice at Monash University.
Victims of abusive relationships are at a higher risk of being financially disadvantaged and at poverty after separation. They are more likely to accept unfair property settlements and are three times more likely to receive less than 40% of the property pool. Parties who perpetrate abuse can continue to abuse them through the legal system, by delaying legal procedures, sending unnecessary legal letters, deliberately increasing their legal fees and causing the victim to be the subject of harsh cross-examinations. Due to little funding in Legal Aid, only 8% of Australian households are eligible to access a grant to receive legal aid.
Due to these issues, the Lawyer-Assisted Family Law Property Mediation: Legal Aid Commission Trial and Priority Property Pools were recently established and aimed to increase access to resolving post-separation property matters through efficient and low-cost avenues aimed at parties experiencing family violence and economic abuse.
The LAC Trial was initially established in 2020 and was funded to be a two-year trial. It provides legally assisted mediation for dividing property where net assets are $500,000 or less (excluding superannuation). The applicant must also be a priority client of the Family Dispute Resolution Service, a Legal Aid service designed to organise family dispute resolution conferences between parties at no cost (excluding the cost of legal representation). Priority clients includes people who have experienced, or is at risk of experiencing family violence.
If the application is successful, the applicant will be appointed a lawyer who will make an application on behalf of the client. A case manager can also provide the applicant with referrals to family violence support services and provide alternative solutions if mediation is deemed inappropriate. In Victoria, financial disclosure must be required before the first conference, which is intended to make the process more efficient. If resolved, parties are encouraged to sign a Heads of Agreement and lawyers apply for consent orders.
This program allows more women experiencing financial hardship to access legal representation for a property settlement. The more intensive case management is helpful for vulnerable parties as they are able to work with non-legal professionals to get the support and advice needed. The legal representation can level out the playing field for a victim who has a lack of bargaining power in private negotiations. Participants are also less likely to agree to a minority settlement as they receive constant advice from their lawyers and have a realistic proposal in mind. Where a party has experienced extensive family violence, mediation can be held between lawyers on behalf of the parties privately. The outcome is legally binding which allows victims to ‘move on’ and have separate finances without a connection. The fact that Legal Aid is involved removes another aspect of systems abuse, as Legal Aid can fund to obtain certain forms of financial disclosure for the vulnerable parties and avoid obstructive behaviour from the aggravating party.
However, the primary reason why this option may not be suitable for some clients experiencing financial hardship is that mediation requires cooperation from the other party. If the case manager does not receive a response from other party or they decline to participate, the matter is closed. The requirement of needing financial disclosure before the first mediation could also backfire for victims of abuse. This is because victims experiencing family violence may have limited access to financial information as well as the necessary documentation. Furthermore, during the pilot program, some legal professionals observed that parties who had a history of perpetrating family violence were likely to be obstructive in their financial disclosure. These parties would ‘drag their feet’ and be very slow with their paperwork, decreasing the efficiency of this program and increasing trauma for victims. There is also less incentive for parties to settle during mediation as they are not funding the process. However, it should be noted that these are aspects of systems abuse and are not unique to the LAC Trial.
Priority Property Pool
The priority property pool (PPP) was established as a pilot program in the Federal Circuit and Family Court of Australia in 2020. It was designed to provide access to more simple and efficient court processes for property dispute settlements in family law. It was created for similar reasons of ensuring the court-led process would mitigate any power imbalances and ensuring that disclosure occurs expediently and efficiently while achieving just and equitable outcomes. To be eligible, the main requirement is for parties to file their initial application seeking a property or financial order only and that the value of the net assets must be less than $550,000 (excluding superannuation). Neither party can seek a parenting order unless the court makes an exception and declares the case to be a PPP case. There are two streams:
a registrar-led stream where a judicial registrar assists the parties to resolve their property and financial arrangements by consent; and
a judge-led limb which is a simpler procedural process and ends in a judicial determination if the registrar-led limb is unsuccessful.
In comparison to standard litigation, PPP is able to assist parties who were unable to negotiate out of court. Vulnerable parties are naturally more intimidated by the court process but can have better access due to simplified forms and reducing the number of forms required during the proceedings. This leads to a much more efficient court procedure, with an average turnaround of 6 months, much shorter than the years long standard litigation process. A timely resolution is important for vulnerable parties as to not increase financial hardship and trauma. Furthermore, the streamlined court process removes the requirement to file affidavit material which could reduce trauma for victims of family violence as they would not need to recount their experience or hear the other party’s affidavit as well. The registrar-led limb also has a more ‘hands-on’ case management approach and are able to identify unequal bargaining power or other dynamics. The other parties seem to be more compliant even in the registrar-limb, which focuses on a consensual solution, and parties take the process more seriously compared to mediation.
The LAC Trial and PPP were very successful during their pilot program period and have since been expanded by Victoria Legal Aid and the Federal Circuit and Family Court of Australia respectively. The LAC Trial has been transformed into the Family Law Property Program and eligibility requirements for clients remain the same. Since the pilot program, funding has been extended twice with a current end date of 30 June 2025. The grants are capped for 20 parties per month and a lawyer can apply through Victoria Legal Aid’s online system, ATLAS.
The PPP program has continued since the pilot program and have expanded to all filing registries since. After an application has been made, a Judicial Registrar will review the application and determine whether it is a PPP case. If the applicant has an asset pool under $550,000, the required documents to initiate the process are the initiating application, a financial summary and a genuine steps certificate.
Overall, the LAC Trial is suited to a client who is in severe financial hardship and has experienced family violence, where the other party is willing to have mediation to resolve the dispute. The PPP is most suited towards a client whose other party is unwilling to engage with the client as the courts can help to make a judicial decision as it is a comparatively more formal setting. Both programs are suited towards clients who have serious financial hardship, however the LAC Trial guarantees legal representation. They are also both sensitive to that fact that a majority of the client base includes parties who have experienced family violence and try to even out unequal bargaining powers.
About Amy Li
Amy Li is a penultimate year student completing her Bachelor of Laws (Honours) and Commerce double degree at Monash University. Amy is currently a paralegal at a plaintiff class actions firm and volunteers to assist refugees. Through her studies, she has developed a strong interest to improving access to the legal system for vulnerable individuals.
This is the first blog post in a series written by undergraduate law students enrolled in Monash University’s Non-Adversarial Justice unit in 2024.The very best posts have been published here.
Family disputes are inherently stressful, but for those who have experienced trauma—especially from domestic and family violence—the process can be even more overwhelming.
While the Family Law Act 1975 (Cth) promotes Family Dispute Resolution (FDR) as a flexible, less adversarial alternative to litigation, it often fails to adequately address the unique needs of trauma survivors. This highlights the urgent need for a trauma-informed FDR service that supports victims while promoting healing.
In this blog post, we will explore the concept of FDR, the importance of a trauma-informed approach, the key elements that make it effective, the challenges it presents, and how these elements contribute to a more empathetic, supportive process.
Trauma-informed care recognises the profound impact trauma has on individuals and strives to create a safe, supportive environment for survivors. Despite some exemptions, around 41% of family violence victims still use FDR to address their needs. However, the adversarial nature of disputes, the presence of perpetrators, and the language used in FDR can trigger past trauma, making the process harmful for victims.
Philippa Davis from the Women’s Legal Service emphasises the importance of having ‘safe processes’ for family violence survivors. Around 23% of victims report feelings of fear and power imbalances during FDR, which often leads to pressure to accept unsafe and undesired agreements. A trauma-informed FDR service, on the other hand, facilitates safer participation, enhances communication, and increases the likelihood of reaching mutually satisfactory agreements.
For example, Rachael Field and Angela Lynch introduced the ‘Coordinated Family Dispute Resolution’ (CFDR) model in 2009—a trauma-informed, four-phase framework. Piloted in five Australian locations, this model was evaluated as ‘holistic and safe’ for victims, demonstrating the positive impact of trauma-informed practices in FDR.
Elements of a Trauma-Informed FDR Service
A trauma-informed FDR service must integrate six key elements to address trauma.
Before the Session:
Assessments:
A trauma-informed FDR service must start with comprehensive suitability and risk assessments to ensure the process is both safe and supportive for victims. These assessments should evaluate critical factors such as violence, power imbalances, and the psychological well-being of participants to determine whether FDR is suitable.
FDRPs should be trained to conduct trauma assessments effectively in cases involving trauma. Studies show that around 30% of parents feel FDRPs lack the necessary expertise to address abuse, highlighting a significant gap in knowledge. This points to an urgent need for targeted training in trauma-informed practices, including safety planning and psychological first aid, so FDRPs can perform these assessments effectively.
Cultural competence is also a key component of these assessments, especially when working with diverse trauma survivors. Susan Armstrong emphasises that FDRPs have reported ‘less confidence’ in cultural competence, indicating the need for cultural training (including First Nations traditions) to ensure parties feel understood, respected and supported from the outset.
Once FDR is deemed suitable, practitioners and domestic violence workers should adopt a ‘multidisciplinary’ approach to develop risk management plans that address the specific trauma needs identified during assessments. Andrew Bickerdike highlights that these plans may include measures such as separate waiting areas and virtual FDR options to create a more supportive environment for victims.
Information:
Clear and comprehensive information must be provided to participants before FDR sessions. As Joanne Law highlights, this information should include details on participation requirements, the roles of FDRPs and lawyers, any necessary religious or cultural accommodations, and the availability of breaks.
Participants should also be informed of their right to have a support person, their ability to express discomfort or withdraw from the process, and the trauma-informed practices in place, such as promoting autonomy and empowerment. Eugene Opperman emphasises that providing this information helps alleviate pre-session anxiety, as it ensures participants are fully aware of their rights and the measures in place to safeguard their well-being.
During the Session:
Safe Participation
During the sessions, it is crucial to create a safe environment that encourages active participation. A ‘co-mediation approach’ as suggested by Field and Lynch for the CFDR model, can be particularly effective. This approach involves using gender-balanced mediators and legal advocates for both parties to prevent ‘gender bias’– an issue highlighted in the Post-2006 Evaluation Report.
FDRPs must cultivate a welcoming atmosphere using calming language, offering private rooms to ensure confidentiality, and ‘giving ample time for each party to speak’—strategies emphasised by Dee Hardy. Such an environment helps parties make decisions that align with their own interests and the best interests of their children, rather than feeling pressured into ‘unfavourable choices’, which has been a noted concern.
Corinne Henderson and Isobel Everett further recommend minimising staffing changes, offering a variety of choices, and avoiding arbitrary rules to ensure consistent participation. These elements enhance trauma-management and foster open communication, ultimately making the process more effective for everyone involved.
Validation:
Validation is a crucial component of a trauma-informed FDR service. FDRPs should actively listen to participants, ask trauma-sensitive questions like “How did that make you feel?” and express genuine empathy. These actions help bolster participants’ self-worth and support their emotional well-being, addressing the high levels of acrimony and self-doubt reported by 17% of parties in family disputes.
FDRPs should also remain attuned to participants’ emotional states throughout the session. The concept of the ‘window of tolerance,’ as described by Pat Ogden, Clare Pain and Janina Fisher, is particularly useful. This framework helps FDRPs recognise when a participant is approaching the limits of their emotional regulation—whether in a state of hyperarousal (anxiety) or hypo-arousal (shutdown).
By adjusting the process to stay within the participant’s ‘their ‘optimal state of balance’, FDRPs create a supportive and constructive environment.
After the Session:
Summaries:
After each session, FDRPs should provide a clear summary of the outcomes and outline the next steps to ensure that all parties understand the progress made, helping to alleviate anxiety.
Conducting a debriefing immediately after the session allows participants to reflect on their experiences, validate their emotions, and address any lingering concerns. By actively involving them in determining the next steps, this trauma-informed approach enhances their sense of control and supports their healing.
Follow-Ups:
Follow-ups are essential for providing ongoing support and ensuring the long-term effectiveness of agreements. Around 19% of parents who reach an FDR agreement no longer have one a year later. To address this, a follow-up within 1-3 months should assess the agreement’s effectiveness and evaluate parties’ evolving needs. Itshould also include a specialist risk assessment for any new concerns and seek feedback on the trauma-informed FDR service.
A second follow-up, 6-12 months later, should focus on the long-term impact of the mediation, review any additional support needs (such as counselling), and explore the possibility of further mediation. Similar to the CFDR approach, this continued access to resources ensures that parties receive sustained support throughout their healing journey.
Additionally, Field and Lynch point out that trauma can significantly impair communication skills, suggesting that specialised training in ‘communication’ and negotiation strategies is essential for trauma-informed FDR services—though such training can be costly.
A trauma-informed FDR service also requires substantial resources, including ongoing, high-quality training for FDRPs and regular evaluations. These challenges must be carefully managed to ensure that trauma-informed FDR services are effective and sustainable.
A trauma-informed FDR service is crucial to effectively support trauma survivors. By integrating the six core elements, FDR can foster healing and achieve outcomes that the adversarial system often fails to provide. As our understanding of trauma continues to grow, FDR services must evolve to offer the compassionate care that victims truly need.
ChatGPT use:
This blog post was developed with the assistance of ChatGPT to identify key issues, which were subsequently fact-checked and supported with relevant journal articles. The insights provided by ChatGPT helped shape the initial framework, ensuring a comprehensive exploration of the topic.
About the author:
My name is Shanza Shafeek, and I am a fourth-year Law/Arts student at Monash University, specialising in sociology. I am currently working as a paralegal in institutional abuse and as a marketing team member for the Muslim Legal Network. I have also been actively involved as a Monash Law Ambassador and a Human Rights Project member for Amnesty International. I am passionate about legal policy, family law, and promoting culturally responsive approaches within legal practice to support diverse communities.I can be found on Linked In.
The Faculty of Law, Monash University is proud to host the 13th Australian Dispute Resolution Research Network Roundtable on Thursday 27 and Friday 28 November 2025 at the Monash University Clayton Campus (approx. 30 minutes from Melbourne CBD). There are many public transport options to Monash from inner city Melbourne and we will share details for attendees from afar.
The Roundtable is an opportunity to present work in progress and receive feedback and critique in a supportive and friendly environment, and to network with leading dispute resolution academics. We have honed our format over the years and will adopt the following approach:
a focus on work in progress (ie, it’s not a conference, but a collaborative workshop around a table of supportive peers)
a limited number of papers selected for in-depth discussion
there is at least one appointed commentator for each paper
attendance is limited to people who are presenting or commentating upon papers
full papers must be submitted for distribution one month prior to the roundtable
publication of a blog post based upon the paper is expected for all presenters
Anyone working in civil justice and any form of dispute resolution including mediation, conciliation, negotiation and arbitration is encouraged to attend. Scholars from outside Australia are also welcome to attend.
Early Career Researchers and PhD students are particularly encouraged to participate. We are a kind and supportive group of scholars and are very welcoming of newcomers.
The call for papers will be released in June or July.
Queries can be directed to the convenor and co-President of the ADRRN: Becky Batagol (Monash University) Becky.Batagol@monash.edu.
The International Academy of Mediators (IAM) is soliciting applications from academics interested in serving as the next IAM Scholar-in-Residence (SIR). IAM is an organization of peer-selected preeminent commercial mediators from around the globe. The mission of IAM is to foster the highest standards of integrity and competence in the mediation of commercial disputes (www.iamed.org). The purpose of the SIR Program is to help bridge the gap between the theory and practice of mediation. Interaction between the scholar-in-residence and IAM members can help practitioners learn more about prevailing theories and studies, while exposing academics to the environments and challenges facing professionals who make mediation their day-to-day business. The SIR program provides an opportunity to test current practice models while subjecting emerging academic theories to the pragmatic rigor of every-day practice. IAM is now soliciting applications for its sixth Scholar-in-Residence. The IAM’s prior scholars-in residence have been:
Professor Hal Abramson (2014 – 2016)
Professors Dwight Golann and Lela Love (2017 – 2020); and
Professors Doug Frenkel and Jim Stark (2021 – 2024)
Professor Hal Abramson in particular, helped IAM design and formalize this innovative opportunity for academics to collaborate with many of the best known and experienced mediators from different regions of the world. Distinguished scholars following him have brought engaging and provocative ideas to the front for this cohort of prominent mediators.
Timing The Scholar-in-Residence tenure is two years. The start of the upcoming term is flexible, ideally beginning between October and December, 2024.
Compensation The SIR program does not offer any compensation although fees are waived for participating in IAM conferences which take place once a year.
Application and Deadline Any interested academic should submit a letter-application to the IAM SIR Committee Chair, Jennifer Egsgard at jegsgard@egsgardmedation.com before September 30, 2024. The IAM SIR Committee will review applications and announce the new IAM SIR before end of the year.
Letter/Application should include:
Name, email address, and phone number;
Brief narrative of why interested in becoming the IAM’s scholar-in-residence;
Description of possible research/publication project that would be informed by access to the IAM membership (one to two paragraphs); and
Academic resume should be attached, emphasizing experience and scholarship.
When selecting the SIR, the IAM SIR Committee will consider the following factors among others:
History/length of academic experience and contributions;
Past research and publication relating to mediation and ADR processes;
Mediation experience, which is not required but is considered an asset.
Possible Scope of Scholar-in-Residence Activities – Further Detail Illustrations of the sorts of activities in which the SIR might engage are outlined in this section. The opportunities can be expanded as the SIR program develops and evolves under the oversight of the SIR Committee.
a. Contribute to IAM Webinars and Conferences The SIR can assist in designing workshops for IAM webinars and conferences. This might include programs based on the expertise that the person brings to the position, or hosting an academic speaker on a subject that might be of interest to the membership. IAM Conferences are held once a year and have historically been cutting edge, with top tier presenters and panelists. The next IAM Conferences are currently scheduled for May 27 – 30, 2025 in Queensland, Australia, and end of May 2026 near Boston, USA.
The IAM also hosts regular webinars for its global membership and the SIR is encouraged to propose programs for these webinars.
b. Contribute to the IAM’s List Serv Discussion Group The SIR is encouraged to participate in the IAM confidential List Serv by posing questions of theory, ethics, and strategy and commenting on threads. The threads provide a lively exchange of ideas. However, no member content may be distributed or republished by the SIR without express permission.
c. Engage in Scholarship that Draws on the Expertise of the Membership The SIR should prepare an article or other work that will be informed by discussions or collaboration with members of IAM. The SIR also is available to help members prepare articles and speeches by serving as a sounding board and offering advice on the timeliness of topics and options for publication, providing the possibility for significant mutual enrichment between the IAM and the SIR.
This post is the third in a series of posts on this blog written by students studying Non-Adversarial Justice at the Faculty of Law at Monash University in 2023. Students were invited to write blog posts explaining various complex areas of law relating to dispute resolution to ordinary readers. The very best post on each topic is published here.
According to Anne Wallace and Kathy Laster, the COVID-19 pandemic acted as ‘a catalyst for digital innovation’ in the Victorian court system, forcing a rapid shift into the online space with virtual/remote hearings and online dispute resolution.
Alongside this shift, the Senate Standing Committee on Legal and Constitutional Affairs has noted that Victoria continues to grapple with another major challenge; the increasing number of people appearing without a lawyer, otherwise known as self-represented litigants (SRLs). For example, the Supreme Court reported that, in the last financial year, there was a 30 percent increase in the number of queries from SRLs compared to the previous year.
This blog will explore how Victoria’s increasing foray into online dispute resolution and digital/technological innovation can better address the needs of many SRLs, whilst also considering the potential issues it may create.
Did you know online dispute resolution does not just mean court on Zoom?
It is important to note that online dispute resolution is not just limited to virtual hearings. According to Queensland barrister Katrina Kluss, it encompasses any dispute resolution that ‘is facilitated or assisted by information and communication technology.’ According to Kluss, online dispute resolution tools fall into three key categories: facilitative, advisory and determinative.
Facilitative technology
Technology facilitated dispute resolution encompasses all tools that facilitate hearings, such as programs like Skype or Zoom discussed above. However, it can also include technology that facilitates the process in other stages, like facilitating electronic lodging of documents. “E-filing” benefits SRLs by saving time and costs arising from physically delivering documents. Philippa Ryan and Maxine Evers note how it can also assist SRLs in preparing forms/documents by providing drop-down boxes to reduce user error and including links to where SRLs can find further information or sources.
One area where there’s significant growth potential is in the AI advisory space, according to computer scientist John Zeleznikow. Legal representation gives litigants the advantage of being able to seek advice about the likely outcome of their case which helps with expectation management and in making an informed decision about if/how to proceed. As Zeleznikow explains advisory technology, like tools that provide reality testing and BATNA (or Best Alternative to a Negotiated Agreement) advice, is ‘a vital cog in supporting [SRLs].’ Giving SRLs access to such technology would also benefit the courts by acting as an inducement to SRLs with limited prospects to drop or settle their case, which in turn would free up court time and resources for more contentious disputes.
Determinative technology
The final, and perhaps most interesting or controversial, of Kluss’ category of online dispute resolution is determinative technology; software that issues decisions based on data analysis. Such tools would obviously allow for quick and cheap (or even free) resolutions, which would be undoubtedly appealing for an SRL. For this reason, it has gained popularity in the e-commerce space.
A likely familiar example used by Colin Rule is the electronic marketplace, eBay. Due to the nature, sheer volume and relatively minor sums involved in eBay disputes, speed and cost efficiency is paramount. Accordingly, eBay realised that providing a facilitative resolution model wouldn’t be sustainable, so it opted for a fully automated dispute resolution program that is able to conduct problem diagnosis and technology-assisted negotiation, and finally make decisions if negotiations are unsuccessful. This program is used to resolve 60 million disputes annually.
In addition to being quick and cheap, Rules argues that AI determinations can provide a greater degree of consistency and thus certainty in dispute resolution by removing the fickleness of human judgement, which leave SRLs more satisfied given their outcome is more likely to be consistent with similar cases. However, whilst there’s undoubtedly value in embracing this kind of technology for certain disputes, as Kluss explains, where disputes are complex, emotionally charged and/or financially significant –
‘the absence of human insight, empathy, and guidance, provided to users of [online] dispute resolution platforms … is susceptible to creating, rather than abating, confusion among defendants thereby detracting from the intended benefits.’
Finally, it’s likely that some SRLs will be wary of, or reluctant to embrace, automated/algorithmic decision-making, especially following the “Robodebt” scandal; where a Royal Commission found the automated decision-making scheme involved was ‘a crude and cruel mechanism’ that resulted in the raising of ‘demonstrably wrong debts’ (final report Vol 1, xxix-xxvi).
Is virtual dispute resolution better for SRLs?
What are the benefits of the use of facilitative technology for online dispute resolution for SRLs in Victorian courts?
Virtual dispute resolution is less intimidating
Appearing in court, or even in alternative dispute resolution processes like mediation, can be incredibly intimidating for anyone, even lawyers, but especially for SRLs who usually lack legal expertise and/or experience with the system, argue Michael Legg and Anthony Song and Stuart Ross and Sophie Aitken. Accordingly, allowing SRLs to appear from their own space, rather than a court/conference room, helps reduce formality and adds an element of arm’s length to the dispute (including by preventing accidental run-ins between parties during breaks), which may make the SRL feel more comfortable when appearing. Notably, it’s quite common for victims of violence or abuse to be self-represented as, according to Zeleznikow, they’re ‘particularly likely to have few resources and little opportunity to obtain the services of a lawyer. Stuart Ross and Sophie Aiken argue that as a consequence, the emotional and physical distance that a remote hearing provides can be especially important.
It reduces travel and related costs
Virtual appearances eliminate the need for SRLs to travel (and thus incur travel-related costs), argue Philippa Ryan and Maxine Evers. This is especially impactful on those living rurally or internationally, those with mobility issues and for parents or caretakers who have to find alternative care arrangements.
The value in having this technology available is notably pronounced when it comes to the preparatory meetings/hearings required before a trial. These pre-hearing appearances are often administrative and commonly short, some even taking mere minutes, so not having to appear physically saves SRLs significant time and costs, say Ryan and Evers.
However, it can make the system less accessible for some
Although virtual dispute resolution improves accessibility for some, it can actually hinder access for others. The Victorian Multicultural Commission argues that, this particularly impact those who don’t have access to the necessary facilities/resources like a computer/phone, stable internet connection and a quiet place to appear, and/or those who lack technological skills. As the Victorian Government identifies in its Digital Inclusion Statement, the most ‘digitally disadvantaged’ Victorians include those living in low-income households, disabled persons, senior citizens, those with low educational attainment and First Nations people. Many of these groups are also significantly overrepresented within our justice system, especially our criminal justice system, so it’s especially imperative that measures and accommodations are available to those without means or skills to access the technology. This may be as simple as keeping available the option of hearings in person or via ‘the much more accessible technology, the telephone’ argues Bridgette Toy-Cronin. It could also mean providing additional supports and resources like online/remote technical support, interpreters and educational programs.
There’s also a lot to be said for the value of a face-to-face conversation when resolving disputes, especially when engaging in alternative dispute resolution. Speaking to someone through a screen can depersonalise the discussions and network or technological issues can affect the parties’ capacity to engage meaningfully and build rapport, says Shira Scheindlin. The Multicultural Commission also identified that mistrust of technology and privacy concerns mean some SRLs are reluctant to discuss confidential matters online, which can also hinder meaningful engagement.
Technology problems can hamper participation in ODR: ‘I’m not a cat’: lawyer gets stuck on Zoom kitten filter during court case: source Youtube
Problems also potentially arise in relation to virtual cross-examination of witnesses as examiners can’t properly read demeanour or body language over video. This would make the task especially difficult for SRLs who can’t fall back on witness examination experience.
Conclusion
Embracing online dispute resolution is one of the most significant steps courts can take to better meet the needs of SRLs, as it has the potential to make justice cheaper, easier and more accessible. However, like with any innovation, it’s imperative that change is not so quick or drastic that it leaves people behind. Noam Ebner and Elayne Greenberg argue that the primary way to safeguard against this is to ensure there’s appropriate consultation and input in the development and roll out of new technologies from all justice stakeholders, including layperson litigants.
In short, we must embrace technology to make our legal system more accessible to SRLs, but we must be strategic to ensure we are not leaving the most vulnerable behind.
About Sarah West
Sarah has just completed her Bachelor of Arts and Laws (Honours) double degree at Monash University. In her Arts degree she majored in Criminology.
Sarah has just begun as a graduate at MinterEllison Lawyers and is currently rotating through the Statutory Compensation team. Through her studies, Sarah developed a passion for understanding how we can make our legal system more accessible to individuals.
This post is the second in a series of posts on this blog written by students studying Non-Adversarial Justice at the Faculty of Law at Monash University in 2023. Students were invited to write blog posts explaining various complex areas of law relating to dispute resolution to ordinary readers. The very best post on each topic is published here.
Disclaimer: this piece contains content that some readers may find distressing.
Beyond ‘either/or’
The term ‘intersectionality’ has been co-opted in so many ways — in left-wing memes, in right-wing culture wars, in digital shopping carts — that you’d be forgiven for forgetting what it actually means. Ironic, considering that the concept was first coined by Kimberlé Crenshaw, a Black woman, and you could write a thesis on the endless appropriation, and misuse, of concepts and terminology that originated in Black culture.
So, what is intersectionality? It is the idea that a person’s lived experience is influenced by the various identities that they inhabit (for example, their socio-economic status, or ethnic background), as well as the way that these identities overlap and/or diverge in unique ways. The result may be privilege in certain contexts and/or “compounded disadvantage” in others. I use ‘and/or’ very deliberately because intersectionality challenges binary thinking; its application must be fluid and contextual, tailored to the unique facts of each situation.
Crenshaw, an American legal scholar, developed the idea in response to DeGraffenreid v. General Motors, an unsuccessful 1976 discrimination claim lodged by several Black women who had all been denied work at a local factory. The US District Court for the Eastern District of Missouri found that there had been no racial discrimination, because there were Black men employed at the factory; the Court also found that there had been no sex discrimination, because there were white women employed at the factory. According to District Judge Wanglin, the claimants had to pick one part of their identity: their gender or their race. To lodge a claim on the basis of both attributes would supposedly constitute an unfair “super-remedy” — even though it was the intersection of those two attributes that characterised the discrimination on the facts.
Thankfully, we are growing in our appreciation of the complexities of identity and discrimination; some governments, and even courts, are beginning to listen. However, we still have a long way to go. Only last year, Australian Senator Lidia Thorpe alleged that she had experienced sexual harassment in the Commonwealth Parliament — and that “it wasn’t until a white woman stood up” with a similar allegation “that the media took notice”. Clearly, an intersectional approach — and a reckoning with implicit bias — remains indispensable. That’s where your legal practice comes in.
“We are growing in our appreciation of the complexities of identity and discrimination.”
Image source: Alice (six_impossible_things), Unsplash
Throughout my discussion, I will balance the rewards of an intersectional approach to legal practice with the risks. It is important to remember that no one practitioner or firm can resolve centuries of structural oppression; it is neither your responsibility nor within your capacity. However, there are still tangible steps that can be taken to begin to “restructure the distribution of opportunity and “practise law as a healing profession”.
1. Be aware
Legal practitioners should, as far as practicable, have “historical and contextual understanding” of the communities they work with. This is particularly important when practitioners do not share their clients’ lived experience. Criminal defence lawyer Russell Marks explores this tension at length in his book Black Lives, White Law. Marks, a white man based in South Australia, works mostly with Aboriginal and Torres Strait Islander persons, including in remote Northern Territory. Marks is mindful of his status as an outsider who interacts with the criminal legal system in a substantively different way.
For intersectionality to be meaningful in practice, lawyers must understand what it actually entails. This might be achieved through cultural competency training or other professional development. It is also beneficial to adopt a holistic, non-exhaustive approach to the identity markers relevant to an intersectionality analysis. Though the four attributes covered by federal anti-discrimination legislation — age, disability, race, and sex (or, gender) — are often front of mind, there is no ‘ceiling’ on what might be considered. In fact, thinking outside the box will enhance your practice’s incorporation of intersectionality.
What is your client’s level of educational attainment? Do they live near affordable public transport? How proficient are they in speaking English (or the official language of your jurisdiction)? Were either of their parents ever incarcerated? These are just some of the questions you might consider asking to help gain a deeper understanding of the circumstances that have brought a person to you.
2. Be class-conscious
Marxist scholars have critiqued intersectionality for placing “other forms of social differences […] centre stage” when analysing oppression, ignoring class not just as another ‘social difference’ that affects lived experience, but as the overarching factor that exacerbates other forms of marginalisation. Indeed, one review of demographic data collection in intersectional studies found that 77% of samples measured sex and/or gender, and 72% measured race and/or ethnicity, but only 33% measured socioeconomic status. Here, we can see the lack of consideration given to class, even when practitioners explicitly intend to be intersectional.
However, the problem isn’t intersectionality itself but its application; legal practitioners can mitigate this by remaining vigilant. Access to justice for poor persons is already obstructed by the prohibitive cost of legal advice and representation. A lack of class-consciousness can also have the effect of excluding prospective legal practitioners; many demands of professional development — for instance, unpaid internships — are near-impossible for poorer people. Affirmative action programs that facilitate participation, through initiatives such as mentoring or financial aid, are essential to achieving socio-economic intersectionality.
3. Be strategic
There are areas of law where intersectionality is fundamental. For instance, in the criminal legal system, a person’s indigeneity and/or ethnicity may, due to structural racism, make them more vulnerable to harsher policing and/or judicial sanction. Accordingly, an intersectional approach is necessary in order to identify any exceptional circumstances that might be relevant to bail or sentencing.
There will also, of course, be disputes where an intersectional approach is less useful; for example, in corporate contracting. There may even be socio-emotionally charged disputes where intersectionality is not the most appropriate framework, and the focus should be on, for example, parties’ relationships instead of identities. However, this doesn’t mean that intersectionality is unnecessary as a rule, but merely that it should always be deployed deliberately, with careful regard for the specific facts at hand.
4. Be structured and sensitive
Taking concrete organisational steps towards intersectionality ensures that it is “more than theory”. Intersectionality should be an active practice, embedded from “the front-end (point of entry) of the justice system”. Triage processes can facilitate this via the collection of extended baseline data about clients, in order to better understand the totality of their identities — and to better cater to their legal needs.
Incorporating intersectionality is “a process of continuous improvement”. We all will make mistakes along the way. However, safeguards can be introduced to mitigate the harm caused by these errors.
Collecting data on identity characteristics, or focusing on a person’s experience of discrimination or suffering, can indirectly “reinforce ideas of inherent differences […] rather than point towards actionable solutions”. Clients need to understand why this information is being collected (ie, to enhance their legal advice or representation); otherwise, they may feel that they have been further victimised by the process.
Practitioners should work collaboratively with clients, as well as listen to their client’s interests and concerns, rather than assuming that their clients feel burdened by their identities.
The intersectional processes that I have advocated may unintentionally ‘out’ people who do not wish to discuss certain parts of their life; for example, women of faith whose religions are considered by some as sexist, but which the women do not want to feel pressured into renouncing. This phenomenon is known as ambivalence, in which overlapping identity characteristics foster “mixed and contradictory feelings” in the individual.
These dynamics must be navigated sensitively. Legal practitioners might adopt a multidisciplinary approach and work with other professionals, like social workers. The integration of legal services with other professions, like health, is a growing feature of public policy. Such a development can be mirrored in private practice, too.
Intersectionality may be the way of the future, but there is no reason not to begin incorporating it now.
5. Be resilient
Maintaining an intersectional approach may provoke an adverse reaction in some clients, or even coworkers; certainly, not everyone is a fan of the concept.
However, it is a matter of persistence and tact — of developing a vocabulary to either explain intersectional concepts in a manner that is accessible to skeptics, or alternately embedding it within systems so seamlessly that it is not noticeable.
These are long-term initiatives, not ‘quick wins’, but this should not dissuade us from doing the hard work. We will be better lawyers because of it.
About Thomas Ponissi Thomas Ponissi (he/they) is a Laws/Global Studies student, specialising in Human Rights. Thomas is currently on exchange and completing his final semester at Boston College, USA. He has worked as a paralegal and an administrator in community legal centres.
The Australian Dispute Resolution Research Network 
