Power Imbalance Workshop in Seattle for APFM

Power Imbalance Workshop July 19 2014

Hilary Linton and Claudette Reimer with the APFM training participants on July 19, 2014

On July 19-20, I was one of three trainers who gave a workshop on Power Imbalance in Family Mediation for the Academy of Professional Family Mediators (APFM). Hilary Linton and Claudette Reimer both run mediation programs in the Toronto area and they presented their methods for screening for power imbalance (especially for domestic violence) in individual intake interviews before meeting jointly with the parties. This stimulated a lot of discussion of three questions: 1) whether such intake interviews are really necessary in all family mediation cases; 2) if the mediation proceeds, how to conduct it safely; and 3) how to conduct family mediations in terms of high conflict personalities (the part I focused on).

The first question was addressed by Hilary and Claudette presenting information about the percentage of family mediation cases in which there is a history of domestic violence. Hilary said that research shows that it’s present in about 50% of our separation and divorce mediation cases. I offered my belief that it is present in only about 20% of family mediation cases and that not all allegations of domestic violence are true. However, they convinced me at a similar training last year for APFM that there is a need to screen cases, regardless of the percentage, because of the severe consequences when there is violence or even death following mediation (and they gave a few examples which have occurred in the past few years).

Yet they then explained why research now supports the fact that mediation is better and safer than court for such cases and that they actually screen out very few domestic violence cases – instead they focus on how to make them safe in mediation. I explained how I have decided to screen cases within the context of Pre-Mediation Coaching, so that I combine teaching skills they will use during the mediation with checking to see that mediation is appropriate and safe.

Hilary and Claudette then addressed the second question above by explaining measures for making mediation safe, with cues for people to give if they start feeling unsafe, with separate arrival and leaving times, and many other measures. One point they emphasized is that the individual intake interviews provide an opportunity to discuss what can make mediation safe for both parties. They pointed out that supporting abusers in mediation as well as victim/survivors makes it more peaceful for both parties during and after the mediation. This approach contrasts with court, which tends to escalate defensiveness and conflict, with more risk of abuse after a hearing. They reported that most clients tell them that they prefer mediation and are relieved when it calms down their conflicts, with both parties being treated with respect as well as knowing that they are taking protection issues seriously.

I then focused on the third question, which was how to adapt the mediation process for high conflict personalities, which includes those with a history of domestic violence as well as those without such a history. My emphasis was on calming the parties with lots of empathy, attention and respect for  both of  their concerns; then really engaging them in problem-solving, by teaching them how to make proposals, how to ask questions of me and the other party, and how to respond by simply saying “Yes,” “No” or  “I’ll think about it.”

This structured approach helps the parties feel less defensive, as the focus is on the future rather than their past behavior, conflicts and problems. It is a totally positive approach, focusing the discussions on future choices and possible consequences of those choices, and emphasizing that all of the decisions are up to the parties in mediation. This avoids power struggles with the parties over reaching an agreement that is directed too much by mediator. Experience shows that high conflict people will reject anyone else’s terms of agreement, unless they have meaningfully participated in developing the terms of the agreement themselves.

The training participants were from several states and all really experienced. We were very impressed with their willingness to practice doing screening interviews and working on areas that “pushed them past their comfort zones,” as Claudette liked to say. I learned a lot and really enjoyed working with everyone present!

For those interested in learning more about these screening and mediation methods, see the program for the APFM annual conference on October 16-19, 2014 at www.APFMnet.org.

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Bill Eddy is a family mediator,  family lawyer and family therapist, who has been providing divorce mediation services for over 30 years. He is a Founding Board Member of the Academy of Professional Family Mediators. His website is www.HighConflictInstitute.com.

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Congratulations to Justice Victoria Starr on her Appointment to the Ontario Court of Justice

Justice Victoria Starr

I cannot imagine a better family judicial appointment than that of our former intern and mediate393 roster mediator, Justice Victoria Starr.

I first met Victoria when she was an articling student and I was a young family lawyer. Victoria proved that you can always have influence, no matter how young and inexperienced you can be. She was smart, passionate, committed and “real”. She helped me in my fledgling family law practice enormously.

Victoria started her family law practice in earnest right after that and she never looked back.  Justice Starr has practised exclusively in family law and child protection. For the past seven years, she has managed her own firm, Starr Family Law, Barristers and Solicitors. She is also a certified collaborative family law lawyer, accredited mediator and arbitrator.

Justice Starr  was one of our best roster mediators at mediate393, where she provided her expert dispute resolution services to our free and subsidized mediation program. She was a frequent and generous speaker and teacher to mediators in training. To say she will be missed is a huge understatement.

Justice Starr’s commitment to justice has been exemplified through her work as a panel member for the Office of the Children’s Lawyer, representing children in child protection cases. She has also taught at Centennial College, and been a spokesperson for the Alliance for Sustainable Legal Aid. Justice Starr has volunteered with the Halton Women’s Centre, speaking on a range of topics including youth and the law, conflict resolution, violence against women, and family law.

Justice Starr’s contributions to the legal profession are further demonstrated through her role as past chair of the Family Lawyers Association and vice-chair of the Ontario Bar Association’s Family Law Section.  I am certain that her energy, commitment and ability to get things done will be sorely missed by many.

However, the bench is the place for people like Victoria Starr. That is where she will make her greatest contributions.  While we will miss Justice Starr’s integrity and perseverance as a roster mediator at mediate393, we are sure she will bring  these qualities and more to her well-deserved judgeship. We wish her all the best at the OCJ.

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How – and Why – Lawyers and Mediators Can Help to Make Mediation Work for SRLs

Julie Macfarlane self-represented litigants

Professor Julie Macfarlane

This blog post by Dr. Julie Macfarlane is re-posted from the National Self-Represented Litigants Project.

In my blog last week I referred to the frequent complaints I hear from lawyers and others in the justice system about the difficulty of reaching settlement in a case where one side is representing themselves.

I suggested that while it may indeed be more difficult for a case to settle when there is a SRL on one side, there are some fairly obvious reasons for this – and that if we were to examine these, we might be able to work to address at least some of them.

Criticism of SRLs for being settlement-shy is unfair if it does not also acknowledge the challenges to approaching a settlement for someone without counsel (more about that in a moment). It is also not very constructive. It is in the interests of everyone that SRLs can make better use of settlement opportunities – including but not limited to mediation – and can access practical assistance in negotiating acceptable solutions (interim, partial or complete) to their dispute.

We know that representation makes a difference in mediation – Beck & Sales (2000) report that representation affects party’s comprehension of mediation substance and procedure, and the National SRL Study (2013) found that SRLs often did not remember being offered mediation and many had minimal understanding of the mediation process.

This blog makes some initial suggestions – and hopefully begins a deeper conversation – about what we might do to make mediation work for SRLs.

In their shoes: the attitudinal dimension

If you are feeling exasperated with the last SRL you dealt with (as a mediator or a lawyer), or if you simply have not thought about this before – try imagining yourself in their place. Entangled in a bitter and apparently intractable conflict, perhaps one that affects crucial aspects of your life – family relationships, children, home, work – and finding that you cannot afford a lawyer or have already exhausted our available resources. You are struggling, spending every spare minute on your case, in order to do the very best you can. You are (naturally) highly invested in your case.

Then someone – the judge, a friend, a mediator – suggests settlement. Ask yourself, how might you react? “Seriously? You want me to mediate with him/her? Do you know that every promise s/he has ever made to me has been broken? And that s/he has a lawyer and I am all on my own standing up for myself here?”

Standing in these shoes, each of us might have a hard time with the concept of settlement. With this important acknowledgement in mind, how might lawyers and mediators help?

What lawyers and mediators can do

Hilary Linton of Riverdale Mediation – about to be honored with the Ontario Bar Association ADR Award of Excellence for 2014 – discusses some of the ways in which lawyers and mediators can help to make mediation work for SRLs in a chapter in Settling Family Law Cases – Practical Techniques for Neutrals and Advocates (ed. Lorne Wolfson, forthcoming Fall 2014).

  1. A mediator may need to spend more time preparing with a SRL than with a party who has a legal representative. This may be important to ensure that they are not overly intimidated by the process. As the lawyer on the other side, you might want to hire a mediator who you know will assist the SRL to think about interests and options in advance. If it helps the mediation go better, why not?
  2. Think about structuring mediation as a series of shorter meetings. Mediation is an exhausting process especially when you are emotionally invested. Don’t wear the SRL out and offer frequent opportunities for breaks.
  3. In some cases involving self-represented parties, it may be helpful to hire an evaluative mediator, or one who is at least willing to offer the SRL some private reality testing.
  4. Remember that as the lawyer for the other side you can still provide legal information – for example, information about legal procedure – to the SRL if your client is comfortable with this. If it helps to advance the party’s shared understanding of the process they are engaged in – and especially if it helps a SRL to make an informed decision – it is probably a good thing to offer.
  5. Be patient, courteous and always constructive.

National Self-Represented Litigants Project LogoA few other ideas from the NSRLP:

  1. Law students can be trained to be effective conflict coaches for SRLs going into mediation. They can work with a SRL outside the process – preparing and then debriefing after a session – and in some cases it may be appropriate for them to sit in as a support person.
  2. Mediation programs should consider offering orientation workshops specifically to SRLs. However well crafted, a flyer explaining mediation is too easily lost or put aside. Many of the fears and concerns that SRLs express about mediation need to be addressed in a workshop format with other SRLs. Some issues may be better discussed one-on-one with a mediation program staff person at intake.
  3. Keep offering mediation. One-time only offers are not enough. Many SRLs need time to figure out whether mediation can work for them and repeated suggestions/ invitations – including “talking about “talks” – are more likely to gain some traction.
  4. Lawyers who are experienced and sophisticated about mediation and collaborative negotiation can step up and play a leadership role here. The only thing worse for a mediator than working with an unbalanced table – a SRL on one side and a represented party on the other – is working with a SRL and a party represented by a mediation-unsophisticated / unfriendly lawyer. Collaborative family lawyers and lawyer/mediators are accustomed to the nuances of working towards settlement with the other side.

Why assisting SRLs to make mediation work makes sense

OK, so the world would be an easier place for other justice system participants if every SRL could have a lawyer. However, this is not about to happen.

Legal Aid Ontario recognized the importance of ILA in their recent announcement (http://legalaid.on.ca/en/news/newsarchive/1407-03_ilacertificates.asp). This is a significant innovation, but will provide ILA for a limited number of those who are currently self-represented in Ontario’s family courts.

As Hilary Linton’s paper illustrates so well, mediators and lawyers share a common interest in enabling SRLs to be functional in the mediation process.

1.           If you are a lawyer, very, very few of your clients are interested in the real time, costs and uncertainties of a trial no matter how much they huff and puff. And finding a settlement requires working with the other side – this is Negotiation 101.

In The New Lawyer (2008) I called this “conflict resolution advocacy”. Conflict resolution advocacy places “the construction and creation promotion of partisan outcomes at the centre of the advocate’s role, and see this goal as entirely compatible with working with the other side – indeed, it can be achieved only by working with the other side.”

2.           If you are a mediator, your responsibility is to develop and oversee a fair and effective process for the parties to use for negotiation. Working with SRLs requires special screening tools and pre-mediation preparation. The work that a mediator does to enable SRLs to be functional in the mediation process is consistent with their obligation as steward of a fair process – it does not compromise their objectivity, nor does not indicate partiality.

Redirecting our energy

Much energy is still being directed – by researchers, scholars and other commentators – towards repeating over and over that all would be well if those silly SRLs just went and hired lawyers, for goodness sakes. Tired of hearing this? So are we. Instead, let’s put our energy and our creativity into figuring out how to make the mediation process work if a party does not have access to counsel and to legal advice.

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Mandatory Mediation is not Access to Justice Panacea

Access to JusticeChief Justice Beverly McLaghlin opened the 2014 National Family Law Conference (after receiving an ear-shattering standing ovation) exhorting lawyers to provide more innovative services to separating couples given the crisis in access to justice. She framed her comments around the importance of maintaining public confidence in the rule of law, which is undermined by restricted on access to justice.

Chief Justice McLaghlin spoke powerfully about the importance of providing those experiencing separation information at the very start about the law and the many processes available to them. This work is currently being done well in Ontario by the Information Referral Coordinators and onsite mediators in all family courts.

Jerry McHale and George Thomson from the Family Justice Working Group next spoke, highlighting the key problems that need solving, including the structural problems inherent in an adversarial system of dispute resolution, the massive increase in child protection litigation, and the scarce government resources available for family law. The group has made a wide range of innovative recommendations for changes to law school curricula, increased resources for triage, unified family courts and specialized judges.

However the Working Group is offside in embracing “mandatory consensual dispute resolution” (an oxymoron in itself). There is little (if any) research supporting mandatory family dispute resolution. Though voluntary mediation is under-utilized, there are better ways to incentivize its use. Settlement and satisfaction rates will decline if parties are forced to negotiate before they are ready or where it may not be safe. Mandatory mediation is costly and it is unlikely that a credible cost-benefit analysis would support it.

Further, forcing parties to negotiate without proper back up for addressing power imbalances— be it from violence, mental illness, addition, or other cause—–is dangerous to parties and children. The drafters have recommended an exception for victims of violence— but this is also the wrong approach. To create a specific exemption forces victims to either “out” the violence without safety measures in place, putting themselves and their children at risk of retaliatory harm— or to stay silent and participate in a possibly highly coercive settlement discussion. Extensive research shows that victims of coercion and control will not disclose the violence if there is any risk that doing so will expose them or their children to greater harm.

A better option is to mandate early, individual, confidential intake meetings, conducted by skilled mediators who screen for all forms of power imbalance and have discretion to proceed with voluntary mediation or to screen the case out as “inappropriate” for any reason.

Data from Ontario’s court connected mediation programs demonstrate that effective intake processes prepare clients well for voluntary mediation and secure their buy-in— resulting in higher settlement and compliance rates. As well, mediation processes with effective screening and safety planning have been shown to enhance safety, resulting in fewer subsequent assaults than either litigation or lawyer-directed negotiation, according to research by Prof. Desmond Ellis at York University.

The Family Justice Working Group has not provided any research to support this recommendation. There were no mediator members of the group nor were advocates for violence involved from what we can tell. The recommendation should be for to mandatory intake —a much sounder, safer and more successful way of encouraging the use of mediation.

Image credit: Emmanuel Huybrechts, https://creativecommons.org/licenses/by-sa/2.0/legalcode
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Testing Family Law Students’ Negotiation Acumen at the Inaugural Walsh Family Law Negotiation Competition

negotiation competitionAlthough more than 90% of all family law cases settle out of court and many of the cases in court settle at an early stage, law schools still focus their training on substantive law and court practice. Litigation moots and mock trials have existed for many years to give students experience in the court room.

Now, family law students will also get to practice negotiation skills thanks to a new competition supported by the Superior Court of Justice and Ontario Court of Justice.

Hilary Linton and Elizabeth Hyde are thrilled to co-chair the inaugural Walsh Family Law Negotiation Competition, an exciting new opportunity to support the teaching of negotiation skills to family law students.

On March 14, 2015, students from law schools across Ontario will meet in Toronto to participate in a family negotiation competition that will be judged by senior members of the profession and members of the bench.

In traditional moots students demonstrate the knowledge and skills necessary for court: persuasive advocacy of a client’s legal case. The negotiation competition requires equivalent knowledge of the law, and a different set of skills.  Students are given a complex problem and they must seek to negotiate a settlement with opposing counsel. Competitors are judged by the degree to which they explore interests, generate options and work effectively with opposing counsel to achieve a settlement that is as good as or better than their client’s alternatives.

Until now, negotiation competitions have been reserved for Civil Law students. The new Walsh Family Negotiation Competition, which is co-sponsored by the Family Dispute Resolution Institute of Ontario (FDRIO) is the first of its kind for family law students in Ontario.

Much of the hard work has already been done by the organizational committee which includes Justices Jennifer Mackinnon, Heather McGee and Ellen Murray,  lawyer-mediators Susan Jack, Brian Burke, and Jennifer Suzor, and Tami Moscoe. And the event has already received strong support from many members of the legal, judicial and academic communities.

You are invited to support this ground-breaking event in one of the following categories:

  • Platinum: $2500
  • Gold: $1000
  • Silver: $500
  • Bronze: $250
  • Supporter: $100

Please contact us soon to ensure your firm will be able to support this innovative event.

As the competition draws nearer, we will also need volunteers to help organize and work at the event. If you are interested in volunteering, please let us know!

Image credit: reynermedia on Flickr, https://creativecommons.org/licenses/by/2.0/legalcode
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Check Out This Helpful Online Parenting Plan Tool

divorce parenting planFor parents who separate or divorce, making decisions in the best interest of their children after the separation or divorce is paramount. There are many decisions to be made at this time, and working out a sustainable parenting plan can be challenging.

Family mediation and parenting coordination can be valuable alternative dispute resolution processes at this time, to help parents come to an arrangement that works for both parents, as well as the children. For parents seeking a resolution on their own, the Department of Justice Canada has an excellent Parenting Plan tool available now on their website.

Called, “Making plans: A guide to parenting arrangements after separation or divorce”, the tool is written as a guide for parents to put their children first. The tool is broken down into a number of sections, starting with an overview of dealing with one’s own feelings and the children’s feelings following separation and divorce, and moving on to evaluating parenting plan options for each individual situation.

This is an invaluable tool for any family dealing with separation or divorce. A number of specific issues are included, such as the impact of family violence, considerations for new relationships or blended families, and what to do if one parents wishes to move away. Helpful advice on including the perspective of the child is also included.

The goal of any alternative dispute resolution process is a durable, long-term agreement; this new tool could help many parents do just that.

At Riverdale Mediation, we offer family mediation and parenting coordination services. Family mediators and parenting coordinators can work with you to develop a sustainable parenting plan. Check out our Getting Started page if you are interested in working with one of our ADR professionals.

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