ADR in a Feminist voice.

By Delilah van Tol

INTRODUCTION

Feminism, the equality of the female sex. Something we all strive for in our daily lives. But also something we are willing to fight for when it comes to, for example, the legal system when it comes to justice. Even though, we made significant process since the start of the movement. Looking back we have to think about gaining the right to vote, property rights and anti-discrimination. And more recent the #metoo movement.  How is feminism tackled in alternative dispute resolution?

COURT AND FEMINISM

A lot of feminists believe that in Court proceedings, women are not properly heard.[1] The Court has been, since the beginning of time, mostly male.[2] This can lead to biased rulings as decisions are made from a male perspective.[3] This is also the case regarding lawmakers.[4] The female perspective is rarely taking into account when it comes to the adversarial process. This process is when lawyers are taking opposing positions to battle it out before the court to surface the truth. [5] As males are more likely to weigh abstract rights.[6] Are women more likely to focus on relationships between the parties?[7]

Catherine MacKinnon made an attempt to create a feminist theory of the state and law.[8] The theory includes one central principle which states that the objective perspective is really a male perspective.[9] This is based on the fact that the male population created and designed our society.[10] Making the male perspective the standard perspective in society.[11]

RAPE LAW

An example of the difference between male and female perspectives is visible in rape law.[12] Rape is mostly defined around penetration.[13] Even though a lot of women describe rape as way more than penetration.[14] More like, of violation of the woman's self, soul, the control over her body.[15] Moreover, there have to be signs of resistance, of force.[16] Instead of a woman giving consent.[17] Every woman reacts differently when in danger making it not common that a woman fights back when being raped. Making this an extremely confrontational subject regarding the male perspective of law.

ADR AND FEMINISM

In alternative dispute resolution is the main aim to come as close as possible to the desired solution for both or all parties. As the problem with the Court is that females are possible not properly heard, it might be solvable with ADR. In Alternative Dispute Resolution everyone is heard and is expected to focus on more than only facts. But also more on the relationships between parties, emotional aspects etc. There is much we can improve regarding equality. But ADR might be a step in the right direction!

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[1] C. MACKINNON, FEMINISM UNMODIFIED, supra note 7, at 54-55; MacKin- non, Toward Feminist Jurisprudence,supra note 7, at 644-45. For an explanation of what the male stance entails, see infra notes 175-91 and 156-60 and accompanying text.

[2] ibid.

[3] ibid.

[4] ibid.

[5] C. GILLIGAN, supra note 8, at 25-63 (describing the male and female perspectives).

[6] ibid.

[7] ibid.

[8] MacKinnon, Toward Feminist Jurisprudence,supra note 7; C. MAcKINNON. FEMINISM UNMODIFIED, supra note 7.

[9] ibid.

[10] ibid.

[11] ibid.

[12] C. MACKINNON, FEMINISM UNMODIFIED, supra note 7, at 87.

[13] ibid.

[14] ibid.

[15] ibid.

[16] ibid.

[17] ibid.