Constructing Conflict: A Discursive Analysis of Family Law Conflict

• Published date: 01 December 2015
• DOI: http://doi.org/10.1002/crq.21150
• Author: Tara Ney
• Date: 01 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 (wileyonlinelibrary.com) • 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-

fl 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