through collaborative and participatory mechanisms. And precisely because of the multidimensional roles and services of family courts, they need to be equipped with personnel who have expertise in social work and family counseling, in addition to family law (Singer 2009: 364–65).
Additionally, scholars such as Sanford Katz and David Rottman highlight the advantages of alternative dispute resolution (ADR) in family lawsuits. Rottman, for instance, points out that disputants are more likely to commit to decisions reached through participatory, mediation-based settlements (Rottman 2000). As for Katz, he lists several benefits for mediation such as: the informality and flexibility of this mechanism, which makes it unthreatening to disputing parties; its suitability for creating the space to address the emotional aspects of disputes; and lastly, its time and cost efficiency (Katz 1994: 53–54).
But the mediation-based court system has also been critiqued, particularly in regard to family disputes. According to Judge Gerald W. Hardcastle, the central problem with such courts is its underlying ideology of dispensing therapeutic, problem-solving justice. Hardcastle, who has served many years as a family court judge in Nevada, writes in a lengthy article that this new system, because of its focus on therapeutic, problem-solving mechanisms of dispute resolution, risks undermining the role and effectiveness of the court as a neutral and impartial legal institution (2005: 125). In addition, under this new paradigm, states take on a large role (through both the social and legal services that the family courts provide) in family governance, a role that Hardcastle sees as undermining the right of individuals and families to manage their own private affairs and intimate relationships. Judge Hardcastle also cautions that family courts, by taking on psychosocial as well as legal roles, are assuming tasks and functions that are better suited to be carried out by community-based organizations (2005: 122).
This latter critique has also been noted by Jane Singer (2009). Singer sees that despite the many advantages of the new specialized and mediation-based family court system, its underlying philosophy has gendered implications that can disadvantage women in particular. She contends that the notion of harmonious, intact families whose members will always have enduring ties even after the dissolution of marriage often works against women, for example in post-divorce arrangements. Singer notes that American post-divorce and co-parenting family court settlements are often premised on the notion that both ex-spouses will stay “deeply involved in each other’s lives” in their capacity as co-parents. But this assumption tends to privilege the non-residential parent (often the father) and disadvantages the residential parent (often the mother), such as in cases when the latter has opportunities to relocate for work or to pursue desirable life opportunities but is restricted in her ability to make that decision due to the co-parenting settlements (Singer 2009: 365–66).
As for mediation, the literature is somewhat divided on whether it works for or against female disputants. There are studies that argue that mediation is beneficial for female disputants because it saves time and effort, and provides these disputants with the space where they can negotiate creatively for a wider range of legal options that may not be available through a process of litigation structured by fixed codes (Coulson 1983; Fuller 1970; MacCabe 2001; Pearson and Thoennes 1984; Roberts 1983; Sander 1984; Silberman 1982).
Other scholars, however, have questioned whether or not mediation in family courts can overcome the gendered power imbalance that often exists between disputants (Bottomley 1984, 1985a, 1985b). Bottomley, for instance, warns that too much focus on the best interest of children and preservation of amicable family relations, which characterize many mediation practices and pro-mediation literature, leads to undermining the individual rights of female disputants. Bottomley and other critics also point out that alternative mechanisms of dispute resolution that may be perceived as beneficial to women—because of their informality, flexibility, and autonomy—may lack the procedural safeguards to ensure a transparent and just legal process, thus risking women’s loss of the guarantee of equality in front of the law (Bottomley 1985b; Shaffer 1988). There are critics who also found that mediation undermines women’s access to justice, but for a very different reason than previously mentioned. This reason is that mediation in some contexts is too regulated by abstract state laws and procedures, and thus fails to provide the space for female disputants to exercise agency in seeking justice (Abel 1982; O’Donovan 1985).
There is also a considerable body of literature that argues that mediation is particularly detrimental to female disputants in domestic violence cases. A common finding in this literature has been that women in such cases are hindered by the fear of abuse or violence and hence are unable to exercise agency in the mediation sessions (Field 2004; Lerman 1984; Strang and Braithwaite 2002). Some of the studies in this literature also cite particular patterns of familial relations and cultural/societal norms that may function as additional factors that lead women to be passive and deferring to the opinions and advice of others in mediation sessions, hence diminishing mediation as a mechanism of fair and just dispute resolution for women (Picket 1991; Weingarten and Douvan 1985).
In her ethnographic research on mediation-based family courts in Kolkata, India, Srimati Basu also questions whether this new system can facilitate tangible feminist legal reform (Basu 2012). Basu found that the mechanisms of family courts—in the absence of reform in the substantive laws regulating gender relations and rights, as well as in the context of dominant patriarchal cultural norms—could, in fact, undermine women’s pursuit of justice. For instance, the court-based mediators tend to understand ‘conciliation’ not simply as an alternative mode of dispute resolution (to adversarial, litigation-centered approach), but more as the reconciliation of the disputants and the salvaging of marriages. Basu also observed that some judges, again because of their problem-solving roles in these courts, restricted the space for female disputants to exercise agency in the process. Basu’s conclusion was that mediation and problem-oriented mechanisms of family dispute resolution in Indian family courts often reflected and reenforced dominant patriarchal gender norms, even in cases when mediators and judges sided with the female disputants. Basu’s larger point is that while mediation-based family courts may have some benefits for women—such as accessibility and affordability of the legal systems—it is important to be cognizant of the gendered limitations and limits of this legal reform.
Egyptian Family Courts: Pathways to Family Wellbeing, Gender Justice, and Modern State Governance?
It is within this larger global context of the growing but also contested popularity and desirability of specialized, mediation-based family courts that we need to understand Laila Takla’s initiative for the establishment of similar family courts in Egypt. Takla espoused this global model of therapeutic, problem-solving, family-oriented court system. Having done volunteer work as a young lawyer in Egyptian juvenile courts and having closely observed the court circuits for personal status cases, Takla believed that the model of family courts was the much-needed answer to tackle the problem of stressful, contentious, and family-adverse atmosphere and procedures in courtrooms (2004: 104). In fact, Takla begins her book on family courts with a dedication that reads, “To every Egyptian family, for whom family courts are established” (2004: 3). This dedication is a good introduction to Takla’s vision of the new family courts. Takla emphasizes that the establishment of family courts is neither a luxury nor is it simply about modernizing the legal system (2004: 9). Rather, the need for these new courts is based on an understanding that sees the well-being of the family as the central consideration guiding the legal processes in personal status cases. And because family disputes are of a distinct nature, according to Takla, state institutions’ involvement in the resolution of these disputes warrants the establishment of a specialized unified court system. The aim of this new system is first and foremost to resolve family disputes through non-litigation mechanisms, such as reconciliation and mediation, undertaken by well-trained court personnel. If alternative dispute resolution mechanisms fail, then the dispute proceeds to the litigation stage. In this stage, the role of the judge is not merely to adjudicate between disputants in a detached manner and simply grant claimants their legal rights. Rather, the judge is also to assume the role of a problem-solver who aims at resolving the dispute in a manner that protects the best interests of children and maintains healthy family
