Some Suggested Steps for Safety Planning in Potentially High Risk Cases

The following excerpt from “Safety Planning in Family Law Cases: An Emerging Duty of Care for Lawyers?” is part 1 of a 3 part series which offers some helpful suggestions for safety planning and screening in high-risk cases.


 

  1. Take all clients through extensive screening interviews before choosing a dispute resolution process and a professional to provide that process. Ensure that best screening practices are followed in any mediation, arbitration or med-arb process in which you are participating. Become informed about those best practices. Take screening seriously.
  1. Do not make assumptions about the risk involved in any case, no matter who the parties are, what their incomes are, what the issues being negotiated are, and who their lawyers are. High risk cases cut across all personal and professional demographics.
  1. Mediate whenever possible and appropriate, using a mediator who follows the screening protocols and Abuse Policy of the Ontario Association of Family Mediation. (See Wainwright v Wainwright for judicial comment on best screening practices in family mediation and arbitration.32) If mediation is not an option because the parties need more support, consider collaborative process. Adversarial lawyering and approaches should be avoided.
  1. Never let clients be alone together to discuss settlement options. Not during a mediation, negotiation or four-way meeting, even if they ask to be left alone. Never assume that you have accurately assessed risk and do not take unnecessary risks with your clients’ safety. Risk assessment is hard to get right, and even the most seasoned professionals make mistakes. Err on the side of caution when you can.
  1. Arrange, as a rule, to have the vulnerable person arrive last for mediations, meetings or at court, and have the potentially dangerous person arrive first. Have the vulnerable person leave first, holding the dangerous person back long enough for the first party to be assured that they will not be followed.
  1. Ask clients what process will make them feel safe and empowered. Discuss process options with clients from a safety planning, power balance perspective. Elicit from clients all concerns they may have about a process. Be adaptable in how you practice and be prepared to require accommodations for clients in all family dispute resolution processes. If you cannot address a client’s concerns, recommend another process.
  1. Have separate waiting areas and as a rule do not permit parties to wait alone together at any time, either for mediation, arbitration, four-way meetings or at court.
  1. If you are using shuttle mediation, ensure that clients’ caucus rooms are far apart and that neither party knows what room the other is in.
  1. Train staff and colleagues to understand the basics of risk and safety planning, and have them familiar with your standard safety protocols at the office.
  1. Create a safe environment for clients to disclose their fears and concerns to you as lawyer, mediator, parenting coordinator or mediator-arbitrator.

    Excerpt from  “Safety Planning in Family Law Cases: An Emerging Duty of Care for Lawyers?” by Hilary Linton

 

Posted in Domestic Violence, Family Law, Lawyers, Mediation, Negotiation, Separation & Divorce, Training | Leave a comment

Transforming Family Law: Legal Education and Transgender Parents

 

FDRIO’s recent Unconference on May 4th introduced legal professionals to the perspective of LGBTQ+ parents in family law. Guest speakers touched on struggles faced by LGBTQ+ families in family law, including; fertility and what that means for coordinating parent access, child custody and parent decision making. With transgender parents, one or both parents might not be biologically connected to the child. Many transgender parents who are also part of LGBTQ+ community often value non -traditional family structures of more than two parents. These unique issues to transgender parents raise complex family law concerns. Often transgender parents also fear accessing legal services due to their transition. This is why LGBTQ+ safe spaces for legal advice, and guidelines for successful transgender allyship in professional legal practice are important.  

As we marked International Day Against Homophobia and Transphobia on May 17th, read about new developments in family law for transgender parents.


An exciting program is available in Ontario to help transgender parents and children. The Trans Family Law Project helps keep transgender parents and their kids together, by providing family law information to transgender people province-wide.

The project, led by Dana Baitz, is also helping legal professionals become better prepared to offer family law services to transgender parents. The Trans Family Law Project has made resources for parents and legal professionals that are easily accessible. Their parents’ tip sheet gives basic family law information for transgender parents and their families. The Community Fact Sheet details facts and legal considerations that relate to transgender parents in Ontario. The fact sheet also includes a list of transgender friendly resources in Ontario. Legal professionals can gain helpful tips for representing transgender clients by referring to the Legal Backgrounder for on Trans Parents and Family Law in Ontario.

As part of the Trans Family Law Project, two sets of webinars are available through their website. The community webinars are made for transgender parents, transgender community members, and service providers to learn about family law.  Another webinar is tailored to lawyers, mediators, and other professionals in family law to learn specific legal strategies in order to better serve transgender parents.

The project looks like a promising foundation for providing essential services to transgender parents. As we look forward, lawyers, mediators and other service providers will need to be knowledgeable as they encounter more transgender parents with family law challenges.

Posted in Culture, Diversity, Family Law, Lawyers, Parenting Coordination, Separation & Divorce | Tagged , , , , , , , , , | Leave a comment

Mediate 393 on “Voces Latinas” Radio in Toronto

On January 29, 2016, I went ‘live on-air’ on Voces Latinas, a Spanish radio talk show in Toronto to talk about Mediate393 and what it is like being a roster mediator. I began the show by providing information about Mediate393 and the services offered by our team of roster mediators. The mediators at Mediate393 are comprised of mental health professionals and lawyers to help deal with family matters post-separation and/or families involved in the court system. I also shared with the listeners the important fact that Mediate393 is a subsidized program through the Ministry of the Attorney General, and clients can receive services on a sliding scale based on income.

Mental health professionals at Mediate393 typically deal with parenting and child related issues that may arise from the separation. For instance, developing a comprehensive parenting plan, developing communication protocols, managing conflict using a children’s best interest lens and resolving issues around major decision making would be typical issues that I as a mental health mediator would encounter at 393.

I also provided examples of some typical situations lawyers encounter to help assist families. Lawyers at Mediate393 can help with income determination issues, support calculations, information about child support guidelines, as well as help people understand the impact different parenting arrangements may have on child support in order to help families make good decisions about who will move from the home, and who will pay what amount to the other.

The issues we hear and deal with are deeply personal and often highly emotional. It is without a doubt that it is most helpful to discuss and negotiate with the assistance of a trained mediator with knowledge and expertise in the area of law and/or child development.

The main feature of this program was the ability for Spanish community members to call in and ask questions. The questions were asked and answered in Spanish. I answered questions related to mediation in the context of domestic violence or presence of restraining orders, all types of custody/access related questions, general questions about Ontario’s Family Law Rules and the Child Law Reform Act, questions involving whether children can participate in mediation or at what point can children make decisions and many more.  The phone lines went off NON-STOP with listeners wishing to ask personal questions. It is evident that mediation to help resolve family issues is necessary, beneficial and valued amongst community members. We should all be proud of the work we do at Mediate393!

For the full radio interview, click here.

For more information on the mediation services Mediate393 provides, visit their website – www.mediate393.ca

 


Shely Polak is a registered social worker and an accredited family mediator practicing in Toronto, Ontario. Shely is a clinician in private practice where she provides specialized services related to families impacted by separation and divorce including custody and access assessments (S.30), family mediation, therapeutic reunification, parenting coordination, and individual (child, adolescent, and adult) therapy.

 

Posted in Children, Domestic Violence, Family Law, Lawyers, Mediation, Parenting Coordination, Separation & Divorce | Tagged , , , , , , , , , , , , , , | Leave a comment

Teamwork in the Caribbean

graduationdayOver the past few months, Riverdale Mediation has been conducting community mediation training in Grenada, St. Kitts and St. Lucia.

We were but a small part of an ambitious access to justice undertaking funded by the Canadian government, IMPACT Justice in the Caribbean.

IMPACT Justice is a 5 year project focusing on a wide range of legal and ADR initiatives across all Caricom countries. It includes judicial training, resources for legislative changes, and, in our case, mediation training for community leaders.

When we were first retained for this project, we were unaware of how profoundly it would affect us. We knew only that we would be delivering a 40 hour mediation program to individuals chosen for their affinity for such training and also for their influence within their communities. We knew that a certain amount of ADR is taking place in all of the countries we visited, including robust programs of court-connected mediation. The legal culture in all three countries is primarily adjudicative, and one of the program’s goals was to build capacity for informal, out of court dispute resolution to preserve limited resources for the cases that really need them. This goal is of course universal in all jurisdictions, including our own.

 

A unique 5 day training program was developed, one that combined civil, community and family mediation theory and practice. Because the history and culture of each country is different, we developed a workshop that could be adapted to the needs of each group we would be training.

We gathered three outstanding training teams of experienced mediators and coaches, created role plays that we hoped would be relevant for those taking the training, and conducted training sessions with our coaches so that the teams could seamlessly deliver the content.

We learned a great deal with each session. There were some culturally consistent features of the three countries chosen for the training and this enabled us to learn from the each round for the benefit of the next. And we found ourselves adapting agendas, role plays, lectures and in-class exercises on the fly each day to respond to the unique aspects of each country’s legal and dispute resolution culture.

We had the great privilege of meeting and working with educators, faith leaders, civic leaders, health-care professionals, social workers, police officers and many other Caribbean community leaders in three different countries. We had inspiring conversations with the impressive representatives of the IMPACT Justice program in attendance at each session, whose commitment to enhancing access to justice in the Caribbean was self-evident.

The days were long, with each team meeting for breakfast at 7 each morning and often working well into the night before every class.

The participants all had considerable relevant personal and professional experience, but few if any had formal ADR training. They compensated with rigorous attention, excellent preparation for each class and full participation in all of the role plays and exercises.

What was particularly impressive was that the 40-hour course, which was approved by the ADR Institute of Ontario towards a civil mediation designation, is generally preceded by a preparatory “introductory” course. These remarkable students learned, in only 5 intensive days, the essential theory and skills of dispute resolution and were demonstrating high levels of proficiency by the end of the workshops.

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The students asked all of the important questions, including: how does a mediator decide the boundary between information and advice? How does one handle situations of risk to a party? Or to a mediator? When must a mediator violate their promise of confidentiality in the interests of safety? What are the best tools to help mediators identify the sources of conflicts and the best approaches to help parties resolve them? How do mediators manage their own emotions? What if the mediator does not share the values of the parties? What are the most important listening and questioning skills for mediators? How do mediators manage the strong emotions of the parties? What can mediators do to empower parties to resolve their own disagreements?

We all had the great pleasure of learning much about the cultures, cuisines, history, music, politics, economies, social challenges, and day to day lives of our Caribbean colleagues. In St. Lucia for instance, we had the pleasure of hearing a concert of the Royal St. Lucia Police Band, in which one of our students played. We attended local street parties, visited small fishing villages, spent time speaking with staff at the hotels, grocery stores and small businesses in the communities where we were teaching to learn as much as we could about the country. We attended a local Toastmasters Meeting as the guest of one of our students, learned about the children and families of many of our participants, shared meals where we learned new recipes and tasted many new things, and gave and received heartfelt thanks and appreciation for our shared passion for effective dispute resolution.

In the end, we were proud and happy to welcome into the dispute resolution profession over 90 outstanding individuals. If one of the goals of the IMPACT Justice project is to infuse community leaders with the passion for and professionalism of mediation, it was a forgone conclusion that the training would be a success. These participants came through the door on the first day with the right attitude.

And it had the added benefit of renewing our own faith in and passion for what we do every day—— help people resolve their disputes in processes of self-determination that are voluntary, confidential fair, safe, and informed.

Special thanks to my co-trainer Elizabeth Hyde and to our coaches: Caroline Felstiner, Akbar Ebrahim, Heather Swartz, Jared Norton, Christine Kim, Joanne Schaefer, Liz Waisberg, Joel Skapinker and Nicole Stewart-Kamanga. We were a very fine team!


some testimonials from the participants:

“the role plays, the handbook, the workbook and interaction with instructors was exceptional”

“(I most liked) the role plays and the exuberance of the facilitators”.

(“I most liked) learning how to be a successful mediator.”

..the quality of the information presented and how it relates to my present job.”

“What I love about this course was the way the speaker and the coaches delivered their role; they were very helpful, well demonstrated and explained… an extremely excellent training.”

..”enjoyed every minute of this course.”

 

 

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New Resource for Family Proceedings

The Superior Court of Justice has developed a new guide that provides information to litigants about each step in a family law case.

For additional information to people who have a family law case in the courts, whether they have counsel or are unrepresented, refer to the mediate393 inc. website. The resources page has lots of information on several topics!

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Naming, Blaming & Claiming: Conflict is Universal

This week I am teaching community, civil and family mediation theory and skills to a group of police officers in St. Lucia. My colleagues Heather Swartz of Agree Inc., and fellow mediate393 mediators Akbar Ibrahim and Caroline Felstiner, are also on the teaching team.

The training is a part of an ambitious five-year access to justice project called IMPACT Justice in the Caribbean. Funded by the Government of Canada, the project aims to strengthen legal frameworks, improve legal services and education and facilitate increased knowledge and use of ADR processes to resolve disputes out of court whenever possible.

This is the third training Riverdale Mediation has provided as part of this project, with the other two being in Grenada and St. Kitts.

Today, our first day here, we covered the essential elements of conflict: its sources and drivers. We looked at the factors that cause people to name grievances, attribute blame for those upsets and seek remedies. We learned that the kinds of things people name, blame and claim about here in St. Lucia are different.

For example, our original case study about a barking dog upsetting the neighbours had little meaning here where dogs are routinely kept outdoors. And that the rules for defining property boundaries are often dependant on trees that may die, resulting in neighbourly disputes about whose house or goat is encroaching on whose land.

We learned that disputes are affected by things beyond anyone’s control here as everywhere. For example, we learned that with the creation the EU came a much smaller European market for St. Lucian bananas, formerly the country’s major export, leading to economic pressures that fuelled conflicts of many kinds.

But the emotions that go with the experience of conflict are largely the same. The needs we have as humans— for respect, acknowledgement and recognition are the same. As are the needs we all have to communicate our needs and concerns clearly and mutually to minimize escalation of conflict.

Which brings me to “bakes.”

I arrived to breakfast Sunday morning to an unbelievable array of delicious things to eat. Baked beans, salt cod stew, fresh fruit, tamarind juice… it was all so good that I had no room to try a “bake”. So I decided to try a bake the next day instead.

Monday morning, I arrived to claim my bake…….. to find French toast instead!

I used this example to illustrate how a “perceived injurious experience” (the absence of my anticipated bake) can escalate if the injured person chooses to blame someone for that injury and to seek a remedy. We discussed the choices I could make in attributing blame— was the hotel deliberately depriving me of my bake or had the pastry chef called in sick that morning? Perhaps they had run out of flour, or someone came first and ate them all.

The participants found this very amusing. After letting us go on about the many possible attributions a person might make when choosing to escalate a perceived injury into a dispute— someone finally informed me:

“Or you could just have learned that they only have bakes on Sunday”.

International training is wonderful, rewarding, fun, informative— and humbling!


Hilary Linton is a Toronto lawyer whose practice is restricted to providing mediation, arbitration, teaching and consulting services. She litigated family and civil disputes for 14 years and then obtained an LL.M. in ADR at Osgoode Hall Law School. She used that experience to launch her ADR business, Riverdale Mediation, which specializes in family mediation and arbitration, teaching mediation and negotiation theory and skills, and private training and consulting for corporations, government and individuals.

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