Leading UK research on family dispute resolution

IMG_2813Helping clients identify the most appropriate dispute resolution process for their family just got a lot easier thanks to a new study in the UK. It is the report of a three year study on the usage, experience and outcomes of family mediation, lawyer negotiation and collaborative law: Mapping Paths to Family Justice.

The researchers studied almost 3000 people across the UK, followed by interviews with almost 100 of them. As well, and most remarkably, the researchers recorded mediation, lawyer-negotaition and collaborative law processes to gain deep insight into how the processes work and how clients respond to them.

The results are surprising in some ways and predictable in others. Some findings:

– for those experiencing separation, the primary source of information about out-of-court dispute resolution options is family lawyers. In the UK, funding cuts have eliminated all legal aid in family law except for mediation. As a result, public awareness of all DR options has declined as fewer people are consulting lawyers before commencing proceedings. In Ontario, we are lucky: Legal Aid Ontario has actually increased funding for family law, particularly for the negotiation, including mediation, and drafting agreements.

– emotional readiness to participate in any form of negotiation was important, with some mediators in particular failing to fully identify this factor. Combined with this was screening for violence and other power imbalances that often failed to identify, assess or manage risk in a way that made vulnerable parties feel safe. “Our study found worrying evidence of cases where screening appeared not to have occurred, or not to have been responded to appropriately.” Similar challenges exist in Ontario where only accredited mediators are required to screen for power imbalances, and where many lawyer-mediators in particular still do not follow best practices in screening.

– client satisfaction rates with mediation (41% of the omnibus survey and 75% of those interviewed) were considerably lower than our experience in Ontario’s court-connected mediation (almost 90%) programs. “Those who were not satisfied were most often those who felt pressured into mediation.”

– financial disputes are easier to settle out of court, regardless of the process chosen, than parenting issues.

– mediation achieved higher resolution rates than lawyer-negogtiation, but this may be because the clients who choose mediation have lower levels of conflict. Settlement and satisfaction rates with collaborative law were high particularly on financial matters, but the study sample was low given the limited number of people who can afford that process.

– it is important to try to identify those cases that are not likely to settle at the outset, to avoid wasting time and expense for parties. These include cases involving intractable conflict, rigid expectations about outcomes, coercion and control, and opposing ideological positions regarding best interests of children. Importantly, another reason for non-settlement in mediation was the non-binding nature of mediated outcomes , called Memoranda of Understanding (MOU). This is a problem in our jurisdiction as well, where many mediators send the parties home with well drafted MOUs that, without legal advice and proper format or a court order, are not binding. We however are fortunate that LAO has stepped up with more funding to support mediated outcomes, and our mediators are learning to draft in terms that can be incorporated into court orders more readily.

– most interesting are the findings about the different norms that men and women were found to bring to the table. The predominant norms for mothers were child welfare and status quo/primary care for children. For fathers, they were formal equality and rights. In financial matters, the predominant norm held by women was to have their needs met, particularly those of the children. For men, it was formal equality and the measurement of contributions.

These findings are enormously valuable for us to consider. Fortunately, the researchers have just received funding to write a book with more extended findings, and it will be one to read when it is published in early 2016.

Posted in AFCC, Arbitration, Children, Collaborative Practice, Culture, Custody of children, Domestic Violence, Family Law, Lawyers, Mediation, Negotiation, Parenting Coordination, Separation & Divorce | Tagged , , , , , , , , , , , , , , | Leave a comment

Mediation: effective and efficient

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In its recent report, “A Case for Mediation: The Cost-Effectiveness of Civil, Family and Workplace Mediation,” MediateBC thoughtfully explores the inherent worth of civil, family and workplace mediation.

The report points out the cost savings from sharing the cost of one mediator, instead of each party paying a lawyer to negotiate or go to court. Unlike more adversarial approaches, mediation does not follow the court structure and/or system which can prolong a settlement and elevate stress and misunderstanding.

As the report notes, conflicts are inevitable because relationships bring different people together. Mediation offers the opportunity to negotiate a collaborative solution, because:

Both parties are Invested: Mediation often cultivates an environment of participation and collaboration: Conflicts are often resolved quicker and without court action. The opportunity to participate in mediation means that parties actively play a part in the decisions and outcomes of the case – an empowering and budget-friendly way to resolve conflict.

 It establishes a Common Ground: Mediation cultivates the establishment of a ‘common ground.’ Parties are given the opportunity to expose and present their own points of view. This enables all parties to better understand the true nature of the dispute.

For more information, read this excellent report!

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It’s brilliant: Family Dispute Resolution in the UK

I just attended the annual Dispute Resolution conference sponsored by Britain’s legal family DR organization, Resolution.

UK family lawyers Alex Verdan (L) (Four Paper Buildings) and Felicity Shedden (R)(Shedden Family Law) with Hilary Linton at the Resolution DR Conference 2014

It was among the best family dispute resolution events I have attended. What made it so good?

1. The quality of the keynote speakers. They included:

-Professor Anne Barlow of the University of Exeter who delivered a passionate keynote address on her groundbreaking research comparing the key dispute resolution options available to separating couples–mediation, solicitor negotiation and collaborative law. (At the time the research commenced three years ago, family arbitration was not permitted in the UK. This has recently changed— more on that later.) The report she co-authored with Rosemary Hunter, Janet Smithson and Jan Ewing, Mapping Paths to Family Justice, is a must-read for anyone delivering family law dispute resolution in any jurisdiction.

-Dr. Miriam Silver, a noted UK psychologist who specializes in speaking and writing about the impact of conflict on children. Her talk was riveting and informative.

-Jamies Pirrie, a leading British family lawyer, mediator, arbitrator and progressive thinker whop spoke about how we can do better work for more families and, particularly, children affected by separation and divorce.

2. The apparent dedication, passion and commitment of the organization’s leaders. You can identify the health of an organization by the “feel” of its conference. This conference drew together about 200 leading family law practitioners from across the UK. The extensive seminars on a wide range of topics were not only well attended but were highly interactive. The level of engagement and positive warmth throughout was remarkable.

3. The genuine curiosity and commitment to excellence of the people attending. Few if any attending this event were there to self-promote. Rather, the atmosphere was one of open learning, sharing, and enthusiasm for new ideas. This is a group that truly embraces the concept of best practices.

4. The structure of the event. There was an informal reception and dinner the evening before, and a full day of highly engaging panels and workshops. Everyone left at 4:30 when the day wrapped up, with a high degree of satisfaction with what they had contributed and learned.

The twitter verse using the hashtag #DRconf2014 was buzzing for the entire day and since. No wonder— this was a rare experience and I am so honoured to have been part of it.

Posted in ADR Training, Arbitration, Collaborative Practice, Custody of children, Diversity, Domestic Violence, Family Law, Inspiration, Lawyers, Mediation, Negotiation, Training | Tagged , , , , , , , , , , , , , , , , | Leave a comment

Screening: Best Practices in Family Med-Arb

Screening is important in any family dispute resolution process to ensure that the parties, counsel, and dispute resolution professionals can engage in the process fully and safely.

In family med-arb, there are particular concerns for the integrity of the screening process, because if the parties proceed to arbitration, they are “locked in” and cannot voluntarily opt out of the process. For this reason, it’s especially important to ensure that both parties’ participation is not being negatively affected by power imbalances in the relationship.

With this in mind, we’ve created the infographic below to share what are widely regarded as the best practices in screening in family med-arb. Feel free to share!

Screening in Med-ArbView the original article, “Best Practices in Screening in Family Med-Arb,” with the full image text here.

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Award of Excellence in ADR!

DSC_3505It was my great honour to receive the Ontario Bar Association’s 2014 Award of Excellence in ADR.

At a lovely dinner at the National Club, I was joined by many friends, family and colleagues to celebrate the energetic and radically evolving field of family dispute resolution.

At a lovely dinner at the National Club, I was joined by many friends, family and colleagues to celebrate the energetic and radically evolving field of family dispute resolution.DSC_3510 My good friend Madam Justice Susan Healey delivered a keynote address in which she recounted, as evidence of my tenacious spirit, how I overcame my fear of bears and came to love camping and kayaking trips up north. And my long time friend and mentor, Professor Fred Zemans of Osgoode Hall Law School, spoke with passion about the things he and I believe are essential to sound dispute resolution, including a comprehensive assessment of negotiation power and designing processes that are safe for all.

 

I was grateful for the opportunity to speak about the profound contribution being made by the mediators across Ontario providing free and subsidized mediation for separating couples. DSC_3504And to identify the three things I think can and should be done to enhance the voluntary use of mediation and to keep separation and divorce as safe as possible for all families:

1– the Law Society Rules of Professional Conduct should be amended to require all lawyers to be informed about and discuss with their clients, in all cases, the benefits of non-adversarial dispute resolution and to explain to all clients the range of options, including collaborative law and the free and subsidized services in their jurisdiction;

2–the Ontario government should amend the Family Law Act, as has been done in British Columbia, to:
(a) require all lawyers to prioritize out of court dispute resolution unless it is inappropriate and
(b) require all family dispute resolution professionals to identify, assess and manage power imbalances and family violence in their choice of and design of dispute resolution process;

3– the Law Society and the government should require all family lawyers to be trained in identifying, assessing and managing power and family violence in all family law matters, and

4– more lawyers and parties should be asking judges to make an order at their case conference for free mediation intake meetings. This would help unrepresented parties be better prepared to settle and/or to manage their cases with better supports, and would expose more parties and their lawyers to a service that is affordable and effective.

To read the entire speech, click here.

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Screening for Family Violence

Accredited family mediators and arbitrators in Ontario are now required to complete training on screening for family violence and power imbalances in family law disputes. But what exactly does “screening” consist of?

We often get questions about the screening process, and so we decided to compile a list of common questions, depicted in the infographic below:

Screening- Common QuestionsOn October 7th-9th, 2014, Riverdale will be offering a three-day course on “Screening for Family Violence, Abuse, and Power Imbalances.” You can register online.

Image transcript:

Screening: Addressing Common Questions

Screening is:

  • A process of identification, assessment, and management of power imbalances and risk
  • Designed to identify those cases where private dispute resolution is not likely to be effective or safe or where specific procedural requirements are needed to make it effective and safe
  • An attempt to get the information necessary to understand what each person needs in order to feel safe – emotionally, physically, legally and psychologically – in the negotiation
  • A fully supportive, confidential interview in which each person is asked their procedural concerns
  • An exploration of the subjective concerns and needs of each person

Screening isn’t:

  • A standard lawyer-client interview
  • An objective fact-finding exercise

Screening addresses:

  • Whether either fears for their safety or the safety of their children
  • Whether a party feels too intimidated or threatened to fully negotiate
  • Whether there are concerns about mental illness, addiction, physical violence, or emotional volatility that could make a mediation process ineffective or unsafe for a client or for the mediator
  • Any factor at all that could create a significant imbalance of negotiation power
  • General and specific questions about the nature of the relationship with the other person

Screening doesn’t address:

  • Challenging the person being interviewed about things the other party may have said, or asking the person being interviewed questions about their behaviour

The screener should be:

  • A professional trained in the dynamics of power, coercion and control
  • Familiar with the different types of family violence, how victims and perpetrators of different forms of violence behave, the risks of certain forms of behavior escalating into serious or even lethal harm, and the appropriate ways to manage such risks as safely as possible
  • Trained to identify and assess various behaviours that could make private dispute resolution ineffective or unsafe, including high conflict behaviours, or those suggesting specific personality characteristics and needs

Screeners don’t necessarily need to be:

  • A mental health professional (but they should be trained in screening research, protocols, tools and best practices)

The screener shouldn’t be:

  • The client’s family lawyer. (As recent case law has shown, it is difficult to maintain confidentiality of the screening process if each lawyer screens their own client in any legal process, or if the parties are screened by different people.)

Screening should happen:

  • Before a dispute resolution process is chosen or committed to
  • In a private and non-judging atmosphere

Screening doesn’t necessarily result in:

  • The termination of the intended process (but it can)

Screening can result in:

  • Making adaptations to the intended process
  • Referring the parties to another process, or another process provider
  • Referring the parties to counselling, lawyers, or other professionals before they can begin the negotiation
  • Requiring assessments or restraining orders before the process can begin
  • Requiring parties to provide confirmation from a mental health professional that they understand the negotiation process and are able to fully participate
  • Ensuring that both parties obtain the supports they need in order to effectively and safely participate in the negotiation.
  • Referring the vulnerable person to resources such as Family Court Support Workers for safety planning for themselves and/ or their children, as a pre-condition
  • Referring the “dangerous” person to supports, counselling or other resources to enable them to feel better able to negotiate effectively and safely
  • Requiring a victim of violence to consult with a criminal lawyer
  • Requiring the negotiation to take place in a location where there are metal detectors and security guards
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