As more people seek to avoid adversarial processes to work through their separation or divorce, the need for professionals with family law training grows. As well, the field of parenting coordination– a private mediation-arbitration process for high conflict separations– is booming. And more people are finding work as mediators thanks to Ontario’s decision to fund family mediation services in the courts. These mediators, many of whom are not lawyers, need to understand the law to do their work well.

Another factor is influencing the demand for family law training: more people are representing themselves in their family law cases. Whether it is because they cannot afford a lawyer, or they choose to not work with lawyers, more people are self-representing. These clients also often want to learn as much as they can about the law.

We train 60-75 professionals each year in family law. Our upcoming course is now full with a waiting list. It will be another great course, with speakers Hilary Linton, Elizabeth Hyde, Nicole Tellier, Ken Nathens and Richard Teicher.

If you are interested in taking this course, contact our administrator Heather Glen. If there are enough interested, we will put the course on again soon.

Since the Ontario Attorney General passed a new regulation– requiring all family arbitrators to certify that the parties had been ‘screened’ for power imbalances and domestic violence before and during the arbitration hearing–lawyers and arbitrators have been debating what that means for them and their clients.

The confusion stems largely from a lack of understanding of what screening is, how it is done, and why.

Here are the screening basics. For a more detailed explanation of why all the fuss is for nought, click here.

1. The fundamental principle driving the screening process is “do no harm”. We have all had or read about divorce cases where it was learned, too late, about the true power dynamics in the relationship. No lawyer, mediator or arbitrator wants to participate in a process that might do harm to a party or a child. We screen to avoid this risk– as best we can.

Screening provides a safe and confidential way for parties to express their procedural concerns. The goal is to allow the mediator or arbitrator to have the information they need about the relationship between the parties to make two decisions:

(a) do I proceed with this case? If so

(b) how should it be structured to allow each party to participate to the best of his or her ability? And, if not,

(c) how do I convey my decision to not proceed or to terminate the process in a way that will keep the parties and children safe and direct them to a more appropriate process?

We do this because, unlike court, mediation and arbitration are voluntary processes.

2. Mediators have been screening both parties before starting mediation for more than 20 years. It is a simple concept. The person who is going to mediate needs to know if it is going to be safe and/or efective to put two formerly intimate people in a room together to negotiate a settlement. And how to structure the mediation to allow the parties to have the best negotiation they can.

3. The best way to make that assessment is for the mediator to meet with each of them confidentially before starting, to find out how they each feel about the process and whether they are ready to begin.

4. Screening for arbitration serves the very same purpose: to assess whether the parties are going to be able to participate safely and effectively in the process.

5. Screeners should not ask a person whether they have abused the other person; in a good screening process, no one need be concerned about self-incrimination. In any event, screeners (and mediators) are trained to not judge people. They do not seek to assess the credibility of what they are told. That is why any concerns about screening interviews leading to bias are also unfounded. The screener, who may well be the mediator-arbitrator, only wants to know whether a person is afraid of the other, or may be unable to participate effectively for some other reason. If a person is afraid, a private process like mediation or arbitration is probably not appropriate. If there are other concerns, the screener is only applying that information to determine appropriate process. If we trust mediator-arbitrators to have private caucuses with parties during the mediation process, we can trust those same trained professionals to treat screening information as it is intended; solely to assess the best process.

6. Research abounds that clients do not tell their lawyers the kinds of things they tell trained “screening” professionals. There may be many reasons for this, but regardless, both empirically and anecdotally, we know it to be true. This is why lawyers should not rely on their own “screening” of their own clients.

7. Additionally, it is difficult if not impossible to accurately assess a relationship without meeting both people. This is why both parties should meet with the same trained professional, in separate meetings, for screening.

8. Mediators are trained to work with tools to help them screen. They are required (if they are accredited) to conduct their own screening before starting any mediation process. That means that in any combined mediation-arbitration process (such as med-arb and parenting coordination) the screening should be done by the mediator-arbitrator, who should be qualified to conduct a screening interview. Parties and lawyers and mediator-arbitrators should all be clear about this from the beginning so that everyone understands what is happening and why.

9. If the process is arbitration only, the regulation prevents the arbitrator from conducting his or her own screening interview, out of concerns for possible bias (because arbitration is a very different process from hybrid mediation-arbitration). Then the screening should be done by a trained third party who is retained by the arbitrator. The screener should provide a brief report to the arbitrator on the results of the screening. The form of report should be agreed upon by the parties/counsel, arbitrator and screener beforehand. It should be limited to advising the arbitrator of any procedural recommendations resulting from the screening process.

10. Screening and reporting on its outcome, including communicating decisions to not proceed, should always be done in a way that protects the confidentiality of the process. If parties convey sensitive information to a screener, they must have confidence that this information will not, in any way, be provided to the other person or their lawyer absent rare exceptions. This goes beyond respecting privacy; it is a matter of safety. This is why even the lawyers for the parties should not be provided with any information about the screening process without the explicit consent of the parties, and why screeners are trained in specific procedures for safely terminating processes.

If these guidelines are kept in mind, screening for mediation and arbitration need not be a source of confusion. It is a valuable tool and, if done properly, should serve to enhance the confidence of all participants that the mediation or arbitration process will be a good one.

This question was somewhat answered by the Supreme Court of Canada in the 2009 Rick v Brandsema decision.

In that case, the SCC upheld the decision of a trial judge, who had set aside a separation agreement following a 29 year marriage. The parties had reached their agreement with the assistance of lawyers and mediators.

The trial judge found that the agreement was unconscionable because the husband had concealed significant assets, and also because he exploited the wife’s mental instability. The Court of Appeal (B.C.) had disagreed with the trial judge; but the Supreme Court overturned the appeal decision, siding with the trial court.

The decision is a “must read” for all family mediators.

It talks about how the period following a relationship break-up is uniquely difficult. Given the emotional vulnerabilities of the parties, special care must be taken by mediators to ensure that the process is as free as possible from informational and psychological exploitation.

This is the first case that I teach to my students. This past January, several of the law students I taught at the University of Western Ontario chose to write their case comments on the decision. Here is one of those case comments, written by third year law student Michael Prosia.

Michael’s argument is that the court did not need to rely on the psychological exploitation argument. There was sufficient evidence of non-disclosure to justify setting the agreement aside, he says. And, the evidence at trial did not support the court’s finding of emotional exploitation in any event.

Whether you agree with his views, Michael’s comment is worth a read.

It is a child-focused process, provided by a professional with child and family dynamics and/or family law training and experience. The PC acts as an educator, coach, facilitator of communication, mediator and arbitrator, as is required. (for a good article on the process read here).

It originated in the US, where many states have laws that clearly define the the PC’s role and permit judges to order parties to attend parenting coordination. There, the PC is part of the court process, often acting as a kind of case manager. Unfortunately, no province has introduced parenting coordination legislation; all PC work in Canada is done strictly by private contract between the parents and the PC.

As a result, we are left to figure out how to adapt the process to meet our Canadian needs. Although the ground-breaking international Association of Family and Conciliation Courts (AFCC) has created guidelines for the practice, they are based on the court-connected experience and do not provide sufficient guidance for jurisdictions that do not have PC legislation.

Different practices have, understandably, arisen. It is important for lawyers and clients to understand these differences to make an informed choice about the process.

Here are some important questions to ask your proposed parenting coordinator:

1– Is the process “open” or is it confidential? How do parents know which to choose? In many US jurisdictions, parenting coordination is required to be confidential (for example, Florida, Colorado and Texas). In Canada, however, there are no laws defining the process; the parenting coordination procedures and the relationship among the parties is strictly contractual. In many cases it is not confidential. One common version of the PC agreement allows the PC to provide a full report to the court about what happened during the process and permits the PC to testify in court.

Our PC process is a confidential one (except for the usual requirements such as to report a child in need of protection. See our PC Agreement here).

We feel that it is important for high conflict parents to feel safe using the PC process. For some parents, an open process will help them feel safe. Others will be worried about manipulation if there is the option of calling the PC as a witness in court. We feel that, in many cases, confidentiality is essential to creating a ‘safe place for parents to have difficult conversations’, and that interests of the children are often best protected by a confidential process. Our experience suggests open mediation processes often cause parents (and their lawyers) to distrust each other more.

There are of course situations where both parents want an “open” process, one that enables the PC to prepare some kind of report and to testify in court if requested by either parent. Some extremely high conflict cases, such as situations where there are alienation allegations, may require an open PC process to address concerns about the well-being of the children. Although we do not provide open parenting coordination services, many highly respected PCs do, including PC trainers Dr. Barbara Fidler and Linda Chodos at Toronto’s Family Solutions.

If you are choosing an open parenting coordination process, you will want the PC to explain the nature and purpose of any report that may result and how that might impact the PC process, positively or negatively.

2– what aspects of the PC role are most important to the parents? Is the PC comfortable with those aspects? PCs provide a wide range of services, including education, conflict management, coaching parents, mediation and arbitration. Each case may require different strengths in different aspects of the role. PCs who are lawyers are likely to be more comfortable with the decision-making role; PCs who are social workers are likely to be more comfortable with the education, coaching and conflict management roles.

3– Who will be involved in the process and how? PCs include all relevant parties in the process, including teachers, babysitters, counsellors, new partners, doctors, and the children themselves. How will the PC convey the information obtained from these people to the parents? What use will be made of the information if a decision must be made?

4– Under what circumstances will the PC make a decision (arbitrate), and how will the process work? What kind of notice will each parent receive and what input will they have? How will information obtained from children and third parties be taken into account?

Parenting coordination is a unique, creative and flexible process. It is one of the most effective and responsive processes available to separating parents who are having difficulty working together for the sake of their children. It has great potential to help children adjust to and cope with the separation of their parents. It will work best for the children if both parents fully understand what it is and how it works.

First, it explains the circumstances in which a court will disregard the confidentiality provisions of a private mediation contract. Second, it highlights the importance of ensuring that agreements to mediate are clearly drafted.

In CAS London Middlesex v. C.B. and L.B., Justice Harper ordered a family mediator to give evidence in court about what happened during a mediation, even though the parties had signed an agreement that provided for confidentiality.

The mediator had worked with the parents on custody and access issues. The parents had signed a “Closed Mediation Agreement”, which, notwithstanding its poor drafting, the judge found was intended to mean that their conversations with the mediator and each other in the mediation process would remain confidential, and that the mediator could not give evidence in court.

Subsequently, child protection concerns arose and the CAS became involved. In the protection hearing, one of the parents wanted the mediator to testify. The other parent pointed to the Closed Mediation Agreement to argue that the contract between the parents prevented either from asking the mediator to testify in court.

Justice Harper found that the Mediation Agreement itself was badly drafted and confusing. He was unable to interpret its various and conflicting terms around confidentiality, but found that the parties did intend the process to be confidential.

He required the mediator to testify all the same, applying what is known as the “Wigmore principle” of common law privilege.

This principle requires the court to answer four questions when considering whether private information should be admitted as evidence.

First, were the communications made on the understanding that they would not be disclosed? Justice Harper found that the communications between the parents and the mediator took place in a process that both parents and the mediator expected would remain confidential.

Second, is confidentiality a necessary element of the mediator-client relationship? Justice Harper answered “yes” to this question.

Third, is the mediator-client relationship one that society values? Again, the answer was “yes”. Justice Harper wrote about the importance of confidentiality in mediation. He quoted from another important decision, Rudd v. Trossacs (2006, 79 OR (3d) 687): “The parties will be wary and guarded in their communications if they think that the information they reveal may later be used outside of the mediation process to their possible disadvantage.”

Fourth, and most important: if the mediator is ordered to testify in court, is the resulting damage caused to the mediation process greater or lesser than the benefit to the court of having the evidence? And here is where the rubber hits the road in this decision. Justice Harper noted that privilege (confidentiality) in mediation should not be set aside lightly. “It must only be done when the balance of ensuring the integrity and fairness of the litigation at hand commands that it be done.”

Because this was a child protection case involving serious allegations and extreme consequences for vulnerable children, the judge ruled that justice demanded that he hear the mediator’s evidence.

It seems to be the right thing to do in a case like this. And with the deepest respect for Justice Harper, it would have been helpful if the court had provided some deeper analysis of the phrase “the balance of ensuring the integrity and fairness of the litigation at hand commands that it be done.” The correct outcome of this delicate balancing act may seem obvious in this particular child protection matter. But what about a case where allegations of domestic violence are made? Or fraud? Almost all family litigation involves serious allegations that could affect children.

Because it is so rare for a judge to override mediation confidentiality, this is an important decision. It affects all mediators, not just those who work with separating parents. We hope that it is interpreted by other judges as it should: as a truly unique ruling that is very specific to its own facts. Otherwise it could severely undermine the critical foundation of voluntary mediation–confidentiality.

But what is this power of mediation?

Communication, or its absence, often lies at the root of conflict. Once a separating couple becomes enmeshed in the litigation process, communication invariably occurs through lawyers– who are hired to be fearless advocates for their clients. This dynamic often leads to escalation of disputes, with opportunities for dialogue limited to adversarial environments such as four-way meetings with lawyers and case conferences with judges.

But when those same clients step out of the litigation process and into mediation, often after years of arguing, they are given the opportunity to articulate exactly what it is they need and want to end the conflict.

Being acknowledged, giving or receiving an apology or simply speaking face to face is often enough to end what might otherwise appears to be intractable conflict.

Mediators allow clients to drive the agenda, giving the clients back the control they have lost in litigation. It is also our role to untangle the conflict so that the real issues come to the surface, allowing clients to see a way out of the conflict.

This is the power of mediation.

If you want to read more about apologies in family mediation click here.

There are so many options: lawyer-negotiations; litigation; mediation; collaborative law; arbitration; parenting coordination, and various combinations.

I am spending the month of January teaching law students at the University of Western Ontario how to help their clients make this important decision.

The Divorce Act requires lawyers to advise their clients about negotiation as an option, and also about available mediation services.

But how does a lawyer know, at the initial interview, whether his or her client is a good candidate for mediation? Or for collaborative law or arbitration?

How can a client assess which process is likely to yield the best outcome for him or her?

The answer depends on many factors, including the client’s goals, personality, and the merits of his or her case. But more importantly, it depends on the nature of the relationship between the parties and any other factors that might affect the balance of negotiation power between the former spouses.

How do the parties communicate? How do they resolve disputes? Is there an element of control or coercion in the relationship? Is one of them afraid of the other? Is there a history of mental illness or drug/alcohol abuse?

Of course, each lawyer can ask his or her client a series of questions. But research shows that parties often do not disclose such details to their lawyers, for many reasons. And, as a mediator who used to act as a lawyer, I know that each person’s story is going to be very different. The only way to get the full picture of the negotiation dynamic is to interview both people (separately.)

This is what is known as “screening”. It would be ideal if the first stop on the family dispute resolution road was an independent third party ‘screener’, who would help the parties choose the process that will be best for them both. Such screeners are already used for arbitration, now that screening is required before anyone can begin a family arbitration case. And most family mediators conduct some form of screening. But screening is not mandatory for other kinds of dispute resolution processes.

Most lawyers however have taken some form of mediation, collaborative or screening training and know the questions to ask their clients. And clients are also increasingly informed about the different process choices available and know to ask questions.

Making the wrong process choice can have devastating impact on the client. For example, once a client agrees to arbitration, they cannot change their mind and the client can end up in a lengthy, expensive and complicated private process that they did not expect. Once a client agrees to mediation, they are expected to be able to have sufficient information to negotiate for themselves, with or without a lawyer, and may end up feeling pressure to settle before they are ready or for an outcome they do not really want. Once a client chooses collaborative law, he or she cannot then change their minds and ask their lawyer to go to court for them and may end up funding a long and costly negotiation that yields no settlement.

Each process choice has its merits and its risks. The time to ask many questions, conduct a comprehensive analysis of the case and consider all options is when the client first walks through the lawyer’s door and before any process choice is made.

And, once the choice is made, is should be re-evaluated often.

Family law cases, like all disputes, are inherently unstable and unpredictable things. What a client wants at the beginning will almost always change as the case unfolds; and the appropriate dispute resolution mechanism is likely to change as well. This explains why so many clients start with one process and end with another. This should not be seen as a failure of the first process, or bad legal advice at the start of the case– but rather proof that the dispute is evolving as it should.

We were joined by our amazing resource/admin person, Heather Glen, who quickly became an indispensable member of the team.

And we undertook to implement and manage the new court connected family mediation program at Toronto’s Superior Court of Justice, mediate393..

This project has been a resounding success in its first few months of operation. We are providing free (yes, free) mediation on-site in the Family Law Information Centre on the 9th floor. The mediators– all accredited and experienced, some lawyers and others mental health professionals– meet with clients who are in court that day for two hours to try to help them resolve urgent or limited matters. We have found that this service is a great assistance to the parties and to the court.

For those cases that need more than two hours, or are too complex to begin on-site, there is off-site mediation. This remarkable service is available to anyone in the GTA and gives them free intake meetings and then up to six hours of mediation at subsidized rates but accredited mediators.

Although the mediate393 project has kept us busy, we have also had a full teaching year, training over a hundred students of mediation, family law, screening for power imbalances and family arbitration. Our training has taken us to places as far as away as Nunavut!

We have received much positive feedback from our clients and our students. And we have learned much too; from our teaching colleagues but also from our clients.

And so we hope to keep learning in the new year, and thank all our clients for their support.

It was a case that has gone on for a long while since the parties separated. The negotiation– which had taken place both in mediation and outside of mediation between counsel– had bogged down around issues of financial disclosure.

Because of the lapse of time, among other things, each party had quite understandably become frustrated with the process and each other. At this point the clients were each blaming the other’s lawyer for the impasse, and this had the potential to de-rail further negotiations.

We made the decision to conduct the mediation entirely in caucus. I rarely do this; almost always I find that parties benefit from at least some amount of face-to-face time. It is only in cases of extreme power imbalance that I will use caucusing as the main or only means of mediating. In this case, however, the parties were exhausted and felt that they would each negotiate more effectively this way.

There are advantages to conducting a mediation in caucus. It can help the parties and counsel stay focused on analysing the pros and cons of the options for settlement, and it enhances bargaining. It can be an effective process to reach agreement, particularly at the end of the mediation, once all the information has been exchanged, interests explored and options generated.

But when parties spend the entire mediation in separate rooms, opportunities are lost. The dynamic between the parties, and the lawyers, is not always easy to predict. I have had many cases where I expected fireworks and instead found cooperation, collaboration and willingness to find mutually acceptable outcomes.

Caucus mediation is also very tough on the mediator. It means you have the responsibility to convey information and meaning, and it is easy to get it wrong. As well, the mediator has a lot of power to influence the process and outcome when he or she is the only person who has seen and heard how the parties (and lawyers) are feeling. That power can be mis-used, intentionally or unintentionally, to derail the process or pressure parties into a settlement that may not be truly voluntary.

And most importantly, I may see the softening of positions, the ability to see the other’s perspective and the opportunity for a win-win; but I am not the one who matters. The good faith that arises from understanding the other’s view; from expressions of regret and remorse; from concessions made…. this is the stuff of real mediation and unfortunately, it is very hard to let parties see this is happening when they are in different rooms.

Mediation with the parties in the same room is more “dangerous” because no one ever knows what will happen. But in my experience, taking the risk is almost always worth it if the mediator is experienced, skilled and fully aware of the dynamics of power between the parties. And in those cases where the mediation cannot be conducted safely— emotionally or physically– then caucus mediation is the next best thing.

With increased provincial funding for court connected mediation, there is work for mediators in every court of the province.

These are not high-paying jobs; and it is not easy work. On-site mediators deal with challenging cases on an urgent and stressful basis. But the service to Ontario families is fantastic; people now have access to free mediation provided by skilled and experienced mediators.

And the government is also subsidizing full day mediations, away from the court, for anyone who is separating, whether they are in court or not. This is an unprecedented service for separating couples who want to try mediation at what is for many a nominal cost. Again, this service is provided by accredited Ontario family mediators.

On December 1st, come to Riverdale Mediation’s first bi-annual Family Mediation Information Night. Hear from experienced mediators like Heather Swartz, Antoinette Clarke, Elizabeth Hyde, Christine Kim, Barbara Benoliel, Hilary Linton and many others. We will help you navigate the accreditation process including:
– what are my training options?
– how long does the training take?
– what does it cost?
– what skills and foundational education do I need to have?
– what kind of internship opportunities exist?
– what organizations accredit family mediators?
– what kind of insurance do I need?
– what work options exist?
– how much do mediators get paid?

And much more. Join us for an informal night of wine and cheese, and meet your future colleagues!

See Riverdale Mediation Family Mediation Information Night for more information, or call Heather Glen at 416-593-0210.