A Case Against Collaboration

In family law, as in other legal disciplines, the use of alternative dispute resolution has dramatically increased. In a process called collaborative divorce, separating spouses hire attorneys who agree to work together—almost entirely outside of the court system—to reach a settlement ending the marriage. A team of experts, including mental health professionals, financial neutrals, and parenting coordinators, helps the parties resolve conflicts and settle property, support, and custody disputes. For divorcing couples, the collaborative process promises emotional healing and avoidance of contentious litigation. Advocates for collaborative divorce describe the transformational effects of the process in an evangelical tone. But collaborative divorce has costs. Collaboration can include considerations of marital fault that feminists helped eliminate from divorce laws. By focusing on conflict resolution, even for the purpose of building post-divorce relationships, collaborative negotiations introduce judgments of “good” and “bad” marital conduct, potentially reinforcing stereotyped gender roles, such as the blameless wife and the guilty husband. These heteronormative paradigms are out of date: gender roles have evolved, the population of married people has changed, and marriage rights have extended to couples of the same sex. Collaborative processes also have distributive consequences. Collaboration privileges wealthy parties who may understate their bargaining power. At the same time, collaboration may not reach vulnerable spouses who could benefit from therapeutic interventions. Collaborative divorce can be blind to situational power and structural inequality. The purpose of these critiques is not to undermine therapeutic approaches or to argue that law should ignore spousal misconduct. Rather, this Article suggests that advocates for collaborative divorce—including some feminist scholars who have theorized the shortcomings of no-fault divorce laws—might understand better how parties negotiate, and what they may sacrifice, within a collaborative framework

How Do Community-based Legal Programs Work: Understanding the Process and Benefits of a Pilot Program to Advance Women's Property Rights in Uganda

This document presents women's property rights, especially access to land, are increasingly recognized as critical to achieving poverty reduction and gender equality. Research shows that community-based legal aid programs are a viable approach to improving legal knowledge and women's access to legal resources to address property issues. From 2009-2010, the International Center for Research on Women (ICRW) and the Uganda Land Alliance (ULA) implemented and evaluated a pilot program to strengthen women's property rights. This report describes the pilot program's implementation, outcomes and lessons. It details the program design, methodologies for monitoring and evaluation, and the context in which the program was implemented. Findings include a discussion of challenges encountered by the rights workers, overall program achievements, and recommendations for community rights work as an approach to promoting women's property rights

Gender Equality and Customary Marriage: Bargaining in the Shadow of Post-Apartheid Legal Pluralism

This Report represents the culmination of a year-long project undertaken by the Crowley Program in International Human Rights at the Fordham Law School to study issues surrounding women and customary law marriages in South Africa in light of its international legal commitments. This Report presents the findings of this research effort. Following this introduction, Part I of this Report describes South Africa\u27s international and domestic legal obligations regarding culture and gender equality, particularly with respect to marriage, divorce, and family formation. Part I then sketches two distinct approaches to the tension between customary law and gender equality, both of which may be found in the domestic law regulating the family. Part II evaluates the effectiveness of the two approaches with reference to data collected in the course of several hundred interviews with South African men and women in May and June 2006. Part II also offers tentative conclusions and suggestions for reform

In the Shadow of a Myth: Bargaining for Same-Sex Divorce

This Article explores a relatively new phenomenon in family law: same-sex divorce. The Article\u27s central claim is that parties to the first wave of same-sex divorces are not effectively bargaining against the backdrop of legal dissolution rules that would govern in the absence of an agreement. In other words, to use Robert Mnookin and Lewis Kornhauser\u27s terminology, they are not bargaining in the shadow of the law. Instead, the Article argues, many same-sex couples today bargain in the shadow of a myth that same-sex couples are egalitarian—that there are no vulnerable parties or power differentials in same-sex divorce. The Article shows how a myth of egalitarianism undermines current bargaining for same-sex divorce. First, the myth leads to what the Article calls “divorce exceptionalism,” that is, when a party claims that existing marriage dissolution rules do not apply in same-sex divorce because they were designed to remedy the nonegalitarian conditions of different-sex marriages. Divorce exceptionalism disables effective bargaining because without default legal rules there is nothing to guide the bargaining process. Second, the myth of egalitarianism eliminates key bargaining chips: under a presumption of formal equality neither party really has anything to “give” or “get” in the bargain for divorce. Finally, the myth, combined with the general fog of uncertainty regarding how courts will treat same-sex divorces, may lead to increased strategic behavior. The Article proposes a realistic solution, arguing that the legal actors who participate in same-sex divorce, including lawyers, mediators, courts, and the parties themselves, should reject divorce exceptionalism and apply ordinary divorce rules. It also proposes to protect vulnerable parties by extending to same-sex divorce the current trend toward joint-custody presumptions. The myth of egalitarianism in same-sex couples, which was quite helpful in achieving marriage equality, is now haunting the first wave of same-sex divorces and harming vulnerable parties. It is time to let it go and address the reality of same-sex relationships