Constructing Conflict: A Discursive Analysis of Family Law Conflict

Published date01 December 2015
Date01 December 2015
C R Q, vol. 33, no. 2, Winter 2015 177
© 2015 Wiley Periodicals, Inc. and the Association for Confl ict Resolution
Published online in Wiley Online Library ( • DOI: 10.1002/crq.21150
Constructing Con ict: A Discursive Analysis
ofFamily Law Con ict
Tara Ney
Assumptions that disputants are responsible for their confl icts are
embedded in many of our practices for engaging confl ict, when, in
many instances, rational-legal institutions we rely on to do our confl ict
business, not individuals, may be causing and sustaining our confl icts
(Cloke 2001). Using a discursive framework that draws on Foucault
(1980) and Bacchi’s (2009) methodology of problematization, this
article critiques a psychological assessment tool used and required in a
custody and access evaluation in the context of family law to show how
institutional structures and context matter when third parties work
with confl ict.
e real political task in a society such as ours is to criticize the working
of institutions which appear to be both neutral and independent; to
criticize them in such a manner that the political violence which has
always exercised itself obscurely through them will be unmasked, so
that one can fi ght them. (Foucault 1972)
Assumptions that disputants are responsible for causing and resolving
their confl icts are rooted in many of our individualistic systems and
practices for engaging confl ict (Bagshaw 2001). For example, in the con-
text of family law, the focus of this article, disputants may be described as
“high-confl ict” (Eddy 2011), pathological (Erikson, Lilienfeld, and Vitacco
2007), or out of control, confrontational, and argumentative (Stahl & Simon
2013).  e point is that, in a modernist sense, individuals are understood
I am grateful to Kim Blank for introducing me to the relevance of Michel Foucault’s
philosophical framework to this subject.
178 NEY
C R Q • DOI: 10.1002/crq
to be autonomous and rational, and thus accountable for the confl icts in
which they participate. But Kenneth Cloke (2001), a prominent confl ict
specialist and researcher, writes that confl ict is the sound made by “the
cracks in a system” (8). His concern is that the Western, formal, rational-
legal institutions, systems, and strategies we rely on to do our confl ict busi-
ness (e.g., the courts, arbitration, even mediations), not individuals, may be
causing and, in many instances, sustaining our confl icts. Cloke’s lament is
supported by other confl ict researchers who recognize that institutions and
their systems invisibly shape the interventions (Napoleon 2013), responses
(Cooke and Kothari 2001), talk (Putnam 2010), and outcomes of confl icts
(Jeong 1990). Critically, confl ict often operates in unconscious and imper-
ceptible ways—like “underground rivers that run through our lives and
relationships” (LeBaron 2003).  ese observations point to the signifi cant
but often unacknowledged ways that systems form confl ict production.
is article shows how people’s confl ict experiences and actions are shaped
by systems that operate within what we call confl ict cultures.
Cloke’s (2001) observation that institutional systems and the accom-
panying practices contribute to confl ict has long been the concern of
researchers and practitioners in the context of family law who point to the
system of law that exacerbates confl ict by pitting family members against
one another in a zero-sum, win-lose battle (Kourlis et al. 2013).  e cri-
tiques concentrate on the legal system that fails to nurture strong, positive
relationships that are key to individual and societal fl ourishing (Hunting-
ton 2014). Others have insisted that family law should aspire and align
itself with the ethical framework of therapeutic jurisprudence to improve
the lives of children and families (Babb 2014). Remedies to improve the
experience for families in this legal context include strategies that more
quickly off -ramp disputants from the legal system to resolve disputes with
better-tailored interventions (e.g., conferencing, mediation, parent educa-
tion, unifi ed family courts, evaluations). However, as this article demon-
strates, an off -ramping remedy may still be susceptible to the injurious
eff ects of the adversarial legal system, particularly when it is (knowingly
or otherwise) focused on serving standards of evidence for the court rather
than the interests of families.  is article demonstrates how harmful con-
ict escalation may occur with a particular off -ramping remedy: the cus-
tody and access (C&A) evaluation.
Examination of the system of family law was taken up by Ney, Blank,
and Blank (2007) who explored how confl ict is constructed through lan-
guage that comes from the privileged legal discourse and the system that

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