Should there be Mandatory Mediation in Family Law? by Hilary Linton - Ontario Bar Association, Family Law Section Publication, “Matrimonial Affairs”, Vol.13, Number 5. With 100 percent mandatory civil mediation in full swing in Toronto and Ottawa, it is time to ask: why not family law? Assuming resolution of the dispute is the litigants' goal (a good assumption in most cases), mandatory mediation under Rule 24.1 has been resoundingly successful. An evaluation of the civil mandatory mediation program concludes as follows: “ in light of it's demonstrated positive impact on the pace, costs and outcomes of litigation, Rule 24.1 must generally be regarded as a successful addition to the case management and dispute resolution mechanisms available…” (Evaluation of the Ontario Mandatory Mediation Program (Rule 24.1) Executive Summary and Recommendations, March 12, 2001). According to the report, some forty per cent of civil actions are settling in mandatory mediation. Those that do not settle achieve quicker resolutions and significant savings in legal fees. (ibid, page2) Interestingly, sexual harassment cases are subject to mandatory mediation. So why are family litigants being deprived of the benefits of early mandatory mediation? For sure the contexts in which dispute litigation occurs are quite different in family and civil cases. Family courts in Toronto, Ottawa and elsewhere have a rich history of early intervention in the forms of case management, case conferences, settlement conferences, use of DROs, and the general disposition of counsel and the judiciary towards settlement. But none of this amounts to early mediation. The potential benefits of mediation to parties in a family law dispute are considerable. Mediation offers an opportunity to address the emotional and historic foundations for the dispute; to actually identify the anger, fear, grief, and guilt that so often drive litigation and the “distress settlements” that tend to resolve that process. Mediation offers former partners a safe, comfortable, neutral and importantly, affordable place to express their feelings to each other, and to be heard by the other. To have their anger, fear, grief and guilt acknowledged by the other. In this environment, parties to a family law dispute are often able to at least understand the other's point of view, if not agree with it. This is the beginning of a process where they can identify their own needs, understand the other person's needs, and see what possibilities exist for meeting as many of those needs as circumstances, creativity and imagination permit. The theoretical benefits of family mediation appear to be supported by the research. According to the results various family mediation evaluations, including a three-year evaluation of the Hamilton family mediation pilot project: 1. parties are more likely to settle in mediation if the mediation process began before significant involvement in the legal process. 2. client satisfaction with mediation was the same whether mediation is voluntary or mandatory. 3. participants in mediation were more satisfied with the process than those who participated in a more adversarial process. 4. women were more satisfied with the financial outcomes of mediation, compared to lawyer-negotiations, and men were more satisfied with the custody outcomes of mediation than lawyer-negotiations. 5. somewhat surprisingly, mediation was found to make a greater contribution to preventing spousal abuse than negotiating with lawyers. 6. abused women were as satisfied with mediation as non-abused women. (Mediating and Negotiating Marital Conflicts, Ellis and Stuckless, Sage Publications, 1996, p.62 and 103) Even studies of mandatory family mediation (in California, Minnesota and Connecticut) showed strong user support. Two thirds of those who failed to settle in one early study still favoured the mandatory attempt. (Divorce Mediation: A Decade of Research, (Jessica Pearson and Nancy Thoennes), Mediation Research, Kressel and Pruitt, eds, 1989, Jossey-Bass). There are compelling reasons why a mandatory mediation program for family litigation must be carefully crafted, but these are not reasons to back away from such a program all together. The main reason is strong possibility that some form of abuse, or severe power imbalance will exist between the mediating parties. This is a reality for family lawyers as well as family mediators, and both must address it if they are going to do their jobs competently. The existence of abuse and/or power imbalance in both the lawyer-negotiated solutions and mediation, if not recognized and addressed appropriately, can: a) endanger the safety of abuse victim and children, and b) result in a settlement that is not truly voluntary, and is not fair to the weaker party. Much has been written about this subject by very experienced researchers, mediators and lawyers. The report from the 1993 Toronto Forum on Women, Abuse and Mediation contained detailed proposals for abuse screening in voluntary mediation. This report became the catalyst for the abuse policy to which all members of the Ontario association of family Mediation should adhere. (www.oafm.on.ca) The Ontario Ministry of the Attorney-General produced a comprehensive questionnaire in 1995, designed to assist mediators in deciding whether an abuse victim being considered for mediation will be able to participate in the process in a way that is truly voluntary, safe and fair. (reproduced in Family Mediation in Canada: Implications for Women's Equality; Status of Women Canada, 1998). Status of Women Canada reviewed the literature on the subject and analyzed data from four publicly funded mediation projects. In its comprehensive 1998 report, the many flaws in family mediation are noted, including a dearth of research on the long-term impact of mediation on women, the absence of standardized training and certification requirements, and the lack of a consistent and proven abuse and power imbalance screening process, among others. But the report glosses over two of the most salient findings of what little empirical research there is; that mediation appears to keep abused women safer, and abuse victims are as satisfied with mediation as non-abused parties. The fact is that many abuse victims will prefer mediation to the alternatives, notwithstanding the unbalanced dynamic. And many abusers will be more comfortable in mediation as well; it offers them a confidential and non-threatening environment. In mediation, an abuser is more likely to admit the abuse, acknowledge the factors that cause him or her to be abusive and seek appropriate help, without fear of making admissions that could result in criminal charges laid for past offences. Given the benefits of mediation, is it then possible to introduce mandatory family mediation while protecting the rights and safety of abused and less powerful participants? In order to be safe and effective, such a process would have to: 1. permit any one who does not want to participate on the grounds of abuse to withdraw; 2. have detailed and standardized screening procedures, much like those prepared by the Ministry of the Attorney-General in 1995; 3. enable mediators to reject cases they consider inappropriate for mediation; 4. provide sufficient funds for training the mediators, particularly in honing their skills of recognizing the sometimes subtle indicia of abuse, and in the varied techniques used by mediators to “equalize” power between negotiating parties; 5. provide for all the procedural safeguards which many other writers on the subject have proposed to help protect abuse victims who wish to mediate, as many will; 6. provide sufficient resources to enable mediators to co-mediate if they assess co-mediation to be appropriate for the case; 7. provide sufficient resources to fund more mediation time. The civil model, which provides for one hour of mediator prep time and three hours of mediation, at a total cost to the parties of $600, is not appropriate for family mediation. The mediator will need at least one hour with each party individually first, and preferably two joint 2-hour sessions thereafter; and 8. provide legal aid funding for those unable to afford the mediation fee. Mandatory family mediation is not likely to result in 40 per cent settlement rates. It often takes time for separating couples to reach an emotional equilibrium, where both are ready to settle. And the amount of financial disclosure necessary to resolve property and support issues will make comprehensive settlement in mandatory mediation difficult. But the benefit to the parties (and their counsel) of even some amount of early, neutral mediation will be noticeable. Immediate, emotional and allegedly “urgent” issues that often lead to costly and stressful motions could be narrowed. Financial disclosure details, or sorting out date of separation, or deciding the Christmas access schedule…any and all of such things could be resolved in even a short mediation early in the litigation process. Most importantly, hostile parties would be given the opportunity to build some trust and communication, which can only help them and their lawyers to ultimately resolve the dispute in a way that is more satisfactory to all involved in the process. * Hilary Linton practiced family and civil litigation in Toronto for 14 years before starting Riverdale Mediation, which offers family and civil mediation services.