(Third in a three-part series.)
There is a consensus among those who teach and practice screening for power imbalances and domestic violence that some ways of doing it are better than others.
The best practice has been established and used for years in the context of mediation, and is adapted for family arbitration.
We suggest that family arbitrators should take responsibility for the integrity of the screening processes that are used in their arbitrations, and follow these guidelines:
1. Before starting the mediation phase of a mediation-arbitration, mediator-arbitrators should meet with each party, separately and confidentially, to assess whether the case is appropriate for mediation-arbitration. The mediator-arbitrator will seek to learn the concerns each client has about procedure; it is not a fact-finding exercise.
2. A key element of screening is its confidentiality. A person who has been threatened with death or fears for their life, or that of their children, will not disclose this fear unless they feel safe. The risk of retaliation for letting the ‘cat out of the bag’ in such cases is too great. Parties must be able to trust mediator-arbitrators to respect the confidentiality of all disclosures made in a screening process.
Screening is supportive of the needs of both parties. It is not for the purpose of finding out who is truthful, who is “good” or who is ‘bad.” It is a non-judging, supportive procedural risk assessment, designed to inform the mediator arbitrator sufficiently to decide whether to take the case and, if so, how to structure it well and safely for all.
It is the mediator-arbitrator’s job to find out what is needed to do this, and to get that information in a safe way. If the mediator-arbitrator relies on the lawyers to do the job, then each party will be screened by a different person, making it obvious who disclosed information that caused the arbitrator to decide to terminate the process. This breach of confidentiality can be dangerous to someone in a coercive controlling relationship.
No one, other than the mediator-arbitrator, should know who “caused” the process to not proceed.
This is why the best and safest practice is for the mediator-arbitrator to do his or her own screening; or, alternately, send both clients to the same expert on screening processes, who will meet with them each separately and confidentially, and ask that person to provide a single confidential report back to the arbitrator with procedural recommendations that do not disclose which party provided what information.
Neither party should know when the other was screened, or what the results of that person’s screening meeting was. A “Confidential Screening Report”, for example, should not be made an exhibit at a trial, or made public in any way. Such reports are provided to arbitrators in confidence, strictly for the purpose of helping the mediator-arbitrator decide whether to take the case and, if so, how to structure it safely and well for all.
If a mediator or arbitrator feels that a case is inappropriate for mediation-arbitration because one party is afraid or other power imbalances that cannot be addressed through adaptions in the process, the mediator-arbitrator should simply decline the case as being inappropriate. To disclose any more could put a victim of coercive controlling violence at risk of retaliatory harm.
3. If the mediator-arbitrator decides to proceed, he or she should design the process with the safety of the parties in mind. Should they be allowed to wait together? Should lawyers be present at all times? Should they come and leave at different times? Should there be referrals to counselling, anger management or court support workers for one or both, to assist their ability to manage the negotiation or the giving of evidence in the arbitration? Should there be security? Does this impact the decision about whether a reporter should be present? Is there a risk to the mediator-arbitrator’s safety? Should special precautions be taken? These procedural “safety planning” decisions should be made in a non-judgemental way, blaming neither party, and seeking to meet the individual needs that both parties will have expressed in their respective screening meetings.
It is a process that supports them both, blames neither, and seeks to give them a safe and effective mediation-arbitration process, one that is more likely to help them reach a fair settlement and enable them to participate fully and effectively in a safe mediation-arbitration.
4. These steps should be taken whether the parties have lawyers or not. Many assume that lawyers understand the risks faced by their own clients but the facts may not support this assumption. Lawyers often do not ask their own clients essential questions about risk and safety; victims of violence sometimes have been so focused on getting out of the relationship safely that they do not appreciate the risks they face until they are interviewed by a trained professional. Abusive clients often hide behind their stature in the community, their compelling personalities, their cultural or religious identity or their seemingly reasonable, rational behaviours. They are often able to credibly portray their traumatized spouse as “crazy”, “irrational”, “over-protective parent” or even an “alienator”. Lawyers can be the last to know.
5. In those cases where the case is going directly to arbitration, with no mediation component, the Regulation requires the arbitrator to have the screening done by a third party. The best practice is for the arbitrator to require both parties to meet with the same professionally trained “screener” who understands family law, mediation, arbitration, the dynamics of power and control and screening procedures. The arbitrator should trust this person to provide him or her with a reliable sense of the suitability of the case for arbitration. This “screener” should meet both parties, separately and confidentially, and provide the arbitrator, in confidence, with a report that gives the arbitrator enough information to design a safe process and comply with his or her duty of identifying, assessing and managing the power dynamics at the start and throughout the arbitration process.
Relying on the lawyers to screen their own respective clients, or having each party screened by a different third party, although permitted, presents the arbitrator with considerable challenges in ensuring reliable and early risk assessment and maintaining confidentiality.
Screening for power imbalances and domestic violence is an important first step in all family law dispute resolution; and more so in mediation-arbitration than any other process. It is our hope that this discussion will reinforce the value of arbitrators implementing consistent and reliable screening protocols.