“Victims are safer when their partners are provided with support to target those dynamic risk factors which contribute to creating heightened risk.”

The pilot project in London Ontario worked with 40 men who were charged with a domestic violence related offence. They were generally low-income men (75% earned less than $40,000); over half had a high school education at most; alcohol was a risk factor for 62% and drug abuse for 35%; 35% had a diagnosed mental illness and 19% more were suspected of having a mental illness by the staff.

The men in the pilot project were, overwhelmingly, isolated.

Listening, talking and offering advice was seen by the accused as the most helpful thing people did for them.

The results of the project are astounding. Compared to the control group of similar men, the men who participated in the support project re-offended far less. 25% of the project group were charged and arrested with offences compared to 55% of the control group.

This research strongly supports the approach to conflict taken by mediators. Mediators do not judge people as ‘good’ or ‘bad’. Mediators work with both parties to give them each the support they need. Mediators screen both parties before starting the case to find out what support they each need to fully participate and to be safe.

The research also makes sense from a human perspective. Men charged with spousal violence are vulnerable. The men in this study in particular had great obstacles to overcome. Their isolation exacerbated those problems.

This study is an excellent illustration of the complexities of domestic violence, and the many, creative ways we can help keep victims of violence and their children safe.

Now, we will be taking the workshop to the UK.

On May 26 and May 30, we will be training collaborative professionals in London how to recognize the signs of significant imbalances in negotiation power, and what to do about them.

The training was created for mediators who often work with unrepresented parties in negotiations. Over the years, family law professionals of all kinds have come to recognize the importance of screening cases for such imbalances in negotiation power.

Whether the imbalance is caused by violence or abuse, coercion and control, poor conflict management, depression, personality dynamics or mental illness, it is important that lawyers, mediators and arbitrators understand the cause of the behaviour, and also know how to structure their process to manage it fairly and safely for all.

We are pleased to share the announcement for the first of our British workshops below!

The Umbrella Group
Invites you to their third London-wide training event
¬¬¬¬¬¬¬¬¬¬
Hilary Linton – Screening for power imbalances in Collaborative Practice

Saturday 26 May 2012, at 9am to 4.30pm – lunch included

This is a rare chance to learn groundbreaking but essential information for all collaborative professionals from a world-class trainer from Canada.

“Screening” is part art, part science. It has evolved from mediation research and practice for over 25 years. Screening gives the collaborative professional the information he or she needs to make informed procedural choices:

1. is this a suitable case for collaborative practice?
2. if so, how do I structure the process to keep it safe, balanced and informed?
3. if not, what process might be safer and more balanced, and how do I communicate that in a way that does not exacerbate potential harm?

Participants in this seminar will:
• Learn the sources of negotiation power
• Learn how to obtain relevant information and analyse negotiation power
• Consider the impact of mental illness, drug addiction, depression, abuse, violence
• Learn to differentiate among different types of violence
• Learn how to manage the process given power imbalances
• Learn how to terminate a process in a way that does no harm to parties or children

Hosted by FLIP
1 Neal Street,
Covent Garden,
London, WC2H 9QL

Suitable for all collaborative professionals and mediators

6 CPD available (ADR accreditation tbc)

Please RSVP to: er@familysolutions.eu

Numbers are limited.
Alternative London date: 30 May 2012.
For details please contact Louise Connolly at Louise.Connolly@russell-cooke.co.uk.

Sent on behalf of The London Umbrella Group Training Sub-Committee, James Pirrie and Stephen Anderson

In Wainwright v Wainwright (2012 CarswellOnt 4113), Justice Nolan found that it was not in the best interests of the parties’ 4-year old daughter that they be forced to attend mediation-arbitration, even though they had entered into an agreement, with legal advice, requiring them to do so.

Justice Nolan looked at the history of the relationship between the parents before and since the separation and found that the power balance between the parents was such that mediation-arbitration was not an appropriate process for them. In particular, she found that the mother was afraid of the father, and that the father appeared to have little insight, making mediation-arbitration an inappropriate process.

The case provides the first overview from a Superior Court Judge of the process of “screening” in mediation-arbitration, quoting at some length the relevant provisions of the Riverdale Mediation website. She notes the importance of mediator-screening for power imbalances in all family mediations, noting that in this case there was no evidence that screening took place.

Justice Nolan also quotes the Policy on Abuse of the Ontario Association of Family Mediation, and extensive case law supporting her decision to over-ride provisions in an agreement that are not in the child’s best interests.

Interestingly, Justice Nolan notes that the child, who was only a toddler when her parents negotiated the agreement, was not represented in that negotiation, raising the very topical issue of how to incorporate a child’s perspective into family law cases, even when the child is small.

This case is a good summary of best practices in screening for mediation and arbitration, and raises some important questions for family lawyers and mediators.

In particular, Justice Nolan varied the parties’ agreement to provide that the parties shall mediate and may, if they both agree, arbitrate future disputes, but on condition that the mediator first screen the parties for power imbalances and suitability. Although we agree that screening is an important pre-requisite to family mediation, and also agree that it is appropriate for mediators to do their own screening in a mediation-arbitration process, we are not certain that a judge has jurisdiction to order screening.

Each week we are publishing a new paper written by a student in my law school class this past January.

Emma Hobson, law student at the University of Western Ontario, writes this excellent analysis of the ground-breaking Supreme Court of Canada decision in Rick v. Brandsema in her case comment.

In Rick v. Brandsema, the Supreme Court set aside a separation agreement that had been negotiated, with the assistance of lawyers and a mediator, because the process followed had not been a fair one.

This decision is required reading for all family lawyers and mediators; and Emma’s case comment is a well worth the read.

Sadly, there are many lawyers, mediators and arbitrators who believe that their clients do not experience domestic violence. They believe that their clients are too sophisticated. Or too successful. Or too beautiful and well put-together. Or that because they don’t disclose it, it must not exist. Or because they have good lawyers, there is no issue.

Today and tomorrow we will be reviewing–among many other things– the Domestic Violence Death Review Committee Report, published by Ontario’s coroner. The stories that this report tells put the lie to all of these assumptions about domestic violence.

Our good friend and colleague in the UK, Stephen G. Anderson, writes an excellent blog, MediationNotWar. Here is his most recent post, which is right on the mark.

Domestic abuse? It doesn’t happen to my clients.
Posted on March 24, 2012

“Domestic abuse is something that happens to other firms’ clients not mine.” “Domestic abuse is not something I really want to hear about.” “Domestic abuse rarely happens to men or boys.” “Honour abuse: what are you on about? This is not Detroit you know!” Sound familiar?

The high profile case of Raoul Moat in 2010, almost went unnoticed as a domestic abuse incident, yet last year the government started dismantling much of the system used to help those facing domestic abuse. In 2006, the police unwittingly sent Banaz Mahmod, a young Iraqi Kurdish woman from south London, back into the arms of her family who then murdered her and buried her in a suitcase. She had been spotted kissing her boyfriend outside a tube station. A chilling story, and a death which could have been avoided had the police understood the concept of honour abuse.

Law professionals – lawyers, mediators, financial planners, family consultants – are in the front line. We need to know how to spot abuse if we are going to protect our clients and ourselves. Yet too often, our response to any invitation, even if it’s free, to train in domestic abuse awareness is along the lines of those in my opening paragraph. Perhaps telling of the legal profession’s attitude is that I am the first family lawyer or mediator to sit on my county’s domestic abuse forum for about 10 years.

My interest in learning more stems from the fact that I’m always on the look-out to provide my clients with better systems to help them and their families. There will always be a need in some cases of domestic or honour abuse for a “route one” approach to the courts for an injunction, and where I assess this to be the case, I refer to a litigation colleague. My interest is to be able to screen with sufficient certainty to allow me to offer my clients a safe alternative approach. Currently, it’s ironic that only those perpetrators convicted of a criminal offence, or injuncted by a court, are offered places on rehabilitation programmes. Those families which want to adopt a more supportive approach, say by using mediation (caucused safely in separate rooms) or collaboration, cannot easily gain access to these programmes. So an opportunity to break the perpetrator-victim cycle earlier is being lost.

This blog can’t change anything. But I do hope that any professional who reads it may decide to gain a little more knowledge about domestic and honour abuse, and agree with me that it shouldn’t be left to the legal aid lawyers down the road.

Family lawyers are more adversarial and less ethical than other kinds of lawyers, according to the U.S.2006 study of Andrea Kupfer Schneider and Nancy Mills.

Schneider and Mills were following up on a seminal 1976 study that also found family lawyers to be more adversarial than their peers. What is distressing is that the percentage of “nasty” lawyers has grown, not shrunk since then, and that family lawyers are still the nastiest.

The article does however have some good news. It provides readers with the characteristics of effective lawyer negotiators– and this is useful information for anyone wondering which lawyer to hire for their divorce.

The most effective lawyers were found found to be “true problem solvers”. They scored highly in assertiveness, empathy and flexibility. Other characteristics included ethical behaviour, trustworthy, pleasant personality, good communicators, astute about the law, realistic, sincere, tactful, adaptable and flexible.

The least effective lawyers were seen as arrogant, manipulative, rude, inflexible, less prepared, and unpleasant.

The article sets out several explanations for why family lawyers are more aggressive, unethical and adversarial, including that this is what their clients (think they) want, and that all the “easy” cases settle in mediation or without any third party assistance at all.

For lawyers and clients alike, the article is essential reading. It will help clients decide what kind of lawyer they really want, and will remind lawyers that if they truly want to help their clients, they may wish to reconsider their negotiation style.

In an excellent paper published in the University of Western Ontario Journal of Legal Studies, Jennifer Hiatt identifies some of the conflicting instructions given to lawyers, and how they are irreconcilable in some cases.

For example, under the Law Society of Upper Canada’s Rules of Professional Conduct, lawyers have a duty to be fearless advocates for their clients (Rule 4.01(1); and they also have a duty to
not “knowingly attempt to deceive a tribunal or influence the course of justice by offering false evidence, misstating facts or law, presenting or relying upon a false or deceptive affidavit, suppressing what ought to be disclosed, or otherwise assisting in any fraud, crime or illegal conduct.” (Rule 4.01(2)(e)).

How does one reconcile those rules where a lawyer knows that the client may take “self-help” action to advance their case?

Hiatt also refers to another pair of potentially conflicting rules: Rule 2.02(5) states that “When advising a client, a lawyer shall not knowingly assist in or encourage any dishonesty, fraud, crime, or illegal conduct, or instruct the client on how to violate the law and avoid punishment.”

But then the commentary to Rule 4.01(1) reads as follows: “In adversary proceedings that will likely affect the health, welfare, or security of a child, a lawyer should advise the client to take into account the best interests of the child. . . “.

These conflicting dictates could make it hard for a lawyer to know what to do if the client intends to defy a court order because of concerns about the welfare of the child?

The ethical dilemmas addressed in Hiatt’s paper are not new; but her suggestion for resolving them is a good one. Hiatt proposes that governing bodies give their lawyers some guidance by creating a hierarchy of rules, so that it can be easier for lawyers to apply them.

Jennifer L. Hiatt, “The Rules of Professional Conduct: A Conflicting Guide for Counsel in Child Custody and Access Proceedings”, online: (2012) 1:1 UWO J Leg Stud 4 .

She encouraged all lawyers to use the incredible array of mediation services as much as possible— because clients almost always win with mediation.

Andrea noted that there is free mediation in all Ontario courts. For lawyers waiting to have their case heard by a judge, there is virtually no downside to trying mediation. It costs the client nothing and could save the client a great deal of time, money and anxiety.

The mediators in the courts are all accredited and insured. They are experienced and skilled at helping parties in crisis– whether they have a lawyer or not– communicate and explore settlement options.

And, as Andrea noted, the province is also subsidizing “off-site” mediation for anyone in the province, whether they are in court or not.

These funded mediation services are a gift. Lawyers should be encouraging their clients to use them.

Andrea also spoke about how lawyers can help their clients prepare for and negotiate well in mediation. Her paper is published on our website; take a look!

It is, she writes, critical to avoid cultural generalizations. In fact, mastering competency in a specific culture can be detrimental to the client, because cultural systems require continuous reconsideration. Moulton notes that, rather than having an encyclopedic knowledge of individual cultures, mediators must understand the concept of culture as it relates to a client’s beliefs and behavior about the issues that are being discussed.

Many authors (see Michelle LeBaron’s work for example) have studied and written on the ways that cultural differences can influence the mediation process, and the things good mediators can do to ensure those influences are positive.

No where is this more important than when mediating parenting disputes. Parents transmit values, rules and standards about ways of thinking and acting, and provide an interpretive lens through which children view the world.

For example, I recently mediated a case with bi-racial and bi-cultural clients. The issue was around sleep habits of their young child. The parent with an anglo-saxon background was adamant about the child sleeping separately as a way of promoting a sense of independence. The other parent felt that co-sleeping was normal, and that it was unacceptable to leave the child alone at night.

This is a good example of how “individualism” and “collectivism” can lead to different parenting styles. These concepts are examples of cultural orientations, which can determine what a person considers to be acceptable behaviour. Within individualist cultures, goals tend to focus on individual preferences, rights and pleasures. So, if you apply these principles to sleep habits, a parent would want their child to sleep separately to develop independence and maintain parental privacy. But within a collectivist culture, co-sleeping is viewed as a way to forge a healthy child-parent bond, and self-soothing is considered less important.

Neither is objectively right or wrong. And, of course, it is important for the mediator to be aware of his or her own cultural influences and how they may impact the mediation process.

As Ms. Moulten writes, “We need to be curious and open, and sensitive when first meeting the clients. That openness includes understanding what works best for clients in the current situation”.