Any endorsement of collaborative law practices over the courts should be explicit about the fact they are rarely appropriate in cases of domestic abuse, a lawyer and activist has argued.

Tammy Richardson-Augustus, an advocate for victims of domestic violence, referred to a proposal by Assistant Justice Alexandra Wheatley, who wrote for the Collaborative Law Alliance saying that the courts should be “the guardian and arbiter of last resort — not the default mechanism for family dispute resolution”.

Mrs Justice Wheatley suggested that the alternative dispute resolution, which seeks to settle outside of court with methods including mediation, arbitration and early neutral evaluation, should be considered.

While she specifically said ADR was not an appropriate route in certain cases such as those involving domestic violence, power imbalances or entrenched non-cooperation, Ms Richardson-Augustus said there was a lack of emphasis that could be missed by victims and survivors of abuse who are seeking justice.

Ms Richardson-Augustus told The Royal Gazette: “[Mrs Justice] Wheatley did acknowledge some limitations of ADR. While [Mrs Justice] Wheatley’s statement is technically correct, the statement appeared perfunctory and superficial.

“There is a lack of emphasis. Abuse is sadly not an anomaly … [Mrs Justice] Wheatley’s caveat should have been in the foreground not folded into the piece in a way that the public and vulnerable victims could miss its significance.”

Ms Richardson-Augustus went on to say that there is a dearth of practical safeguards and that “simply and weakly gesturing towards a few exceptions without having effective methods to screen and assess participants in secure surroundings for a history of abuse leaves victims and survivors to be funnelled into the collaborative process”.

She said many victims and survivors of abuse participate in ADR because they are unaware of their rights to refuse it.

She added that there was a “risk of silencing”.

“In child access cases, victims may not even disclose abuse for fear that disclosure will be weaponised against them as ‘parental alienation’, a pseudo-concept, or cultural factors may inhibit the disclosure of abuse.

“In this climate, will ADR professionals be expertly trained to surface that abuse is a factor and terminate proceedings?”

Ms Richardson-Augustus said that the judicial endorsement must ensure explicit qualifiers, disclaimers and protective safeguards else it will risk exposing victims to renewed coercion under the guise of settlement.”

She clarified that such mechanisms to protect the victim must begin with a priority to ensure the safety of all family members, mandatory specialist-led screening for abuse, ongoing risk assessment, survivor-led decision making and the option to decline without penalty.

“Given the vulnerabilities of victims and survivors of abuse, it’s important that any decision reached is a product of genuine agreement and not a product of vulnerability or survival need, financial or emotional, to settle the case,” she said.

While Mrs Justice Wheatley declined to comment on Ms Richardson-Augustus’s latest submissions, she did provide a response to her initial reaction to her proposal.

Mrs Justice Wheatley said then: “The recent article published by The Royal Gazette, in which I advocated for the adoption of a more collaborative approach across a broad range of family matters, has prompted valuable discussion.

“I am encouraged by the engagement it has generated, as collective dialogue is essential to developing better, more effective and more efficient solutions.

“It remains important to emphasise that every case must be assessed on its individual circumstances.

“In situations involving domestic violence, mediation will most often be unsuitable as a method for resolving family issues.”

The Collaborative Law Alliance was approached for comment.