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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United Kingdom: Family mediation-arbitration

We will be taking our show to the United Kingdom next month.


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Hilary will be speaking in Bedfordshire with Felicity Shedden, one of England’s most experienced mediator-arbitrators. They will canvass important issues that confront professionals in both jurisdictions, including:

– key differences between the three process of mediation, arbitration and med-arb;
– review different models for delivering med-arb processes
– consider issues of ethics, cost-effectiveness and party & professional safety
– discuss case studies to illustrate some of the challenges of the process.

Those in attendance will be lawyers with mediation-arbitraiton experience. It promises to be an excellent programme. For more information click here.

Posted in ADR Training, Arbitration, Collaborative Practice, Domestic Violence, Event, Family Law, Lawyers, Mediation, Parenting Coordination, Training | Tagged , , , , , , , , , , , , | Leave a comment

What is Family Law Dispute Resolution? (Infographic)

Alternative dispute resolution is becoming an increasingly popular choice for families going through separation and divorce. But what is it, exactly, that distinguishes family law dispute resolution from traditional family law processes?

Before settling on a process option for yourself or your client, you will want to consider the elements of all good family law dispute resolution processes.

For this reason, we’ve created a new infographic, “What is Family Law Dispute Resolution?” Check it out:

Infographic: What is Family Law Dispute Resolution?Image transcript:

Dispute resolution in family law has three underlying principles:

1. It is voluntary.

2. It is a process of informed self-determination.

3. It is a safe process: meaning it is physically, legally and emotionally safe. The process and the process provider should do no harm, knowingly or unknowingly.

In order to design (as neutral) or participate (as advocate) in effective family law negotiation, neutrals and advocates should always be able to answer three questions, before and during the process: Is this process voluntary? Is it a process of self-determination? Is it safe, or can it be made safe?

And before you, as a client, decide which dispute resolution process will be best for you and your family, you should be able to answer these questions too.

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Self represented litigants: Mediation: Is there hope?

travelbikeThe National Self Represented Litigants Project just published an “Open Letter to the Canadian Judiciary”. It is a thoughtful and important read.

The self-representing writers plead for greater understanding of their plight, and for more tolerance, compassion and assistance.

This letter serves as a reminder that there are some under-utilized services to help those who cannot afford lawyers. Anyone in Ontario can access free mediation intakes with a lawyer or mental health professional mediator, and judges can order this. In- court mediation is free across the province. Custody, support, financial disclosure, property division are all being competently mediated by our family lawyer and mental health professional-mediators every day– for fees as low as $5 an hour. Those with lawyers can use the service too.

Here is our comment on the letter:

This is a very thoughtful open letter and I hope everyone “in the system” reads it.

The demands on court staff, judges, lawyers and mediators are growing, not only because family law has become so complicated, but also because — as this open letter evidences– there are many more unrepresented parties who have greater needs than represented parties. This challenges us all to do better. And just like the SRLs, no one in the system is always at their best. It is a very stressful time for everyone.

I hope we all will have more empathy for everyone: for the SRLs of course, who are very vulnerable as this letter notes; and also for their spouses who may not feel capable of self representing and who must pay a lawyer. Litigating with an SRL can often feel unfair to the party paying the lawyer. I hope for more empathy for the judges who are in most cases going above and beyond to try to help. The adversarial court system is not designed for the numbers of SRLs that we have, and a great deal of judicial, lawyer and SRL education is badly needed to come up with a more coherent understanding of the challenges and potential solutions we are all grappling with.

We are lucky as family mediation service providers to offer unrepresented parties a free or highly subsidized opportunity to negotiate in a process that is balanced, non-judging, respectful and supportive. Legal Aid Ontario now funds certificates for mediation and for negotiated agreements; and the Ontario government provides Family Court Support Workers to further support vulnerable parties who are often not represented by counsel. Each court has an Information & Referral Coordinator whose role includes supporting SRLs as they navigate the system. There are some terrific resources in Ontario.

We find that most unrepresented parties have very positive experiences in mediation, particularly now with the enhanced LAO support, and also with more of our mediators speaking different languages and with both legal and mental health backgrounds. It is so much easier for mediators to understand and address the stresses facing SRLs; it is our job to be non-judging and supportive of the needs of each party. Judges are– in fairness– hired to judge. As this open letter explains, SRLs are not always at their best in court. In a “judging” system, that is definitely a disadvantage.

I hope that more SRLs will take advantage of the deeply subsidized family mediation services— including FREE same day onsite mediation in all Ontario family courts. It is far better designed to meet the needs of SRLs. And remember– under the Family Law Rules you can ask the judge to order the parties to a free and confidential intake meeting with a highly skilled and qualified mediator, and possibly qualify for legal advice through duty counsel, advice counsel or the new LAO legal advice certificates. More SRLs should be asking for this remedy.

Posted in Children, Custody of children, Domestic Violence, Family Law, First Nations, Lawyers, Mediation, Negotiation, Parenting Coordination, Separation & Divorce | Tagged , , , , , , , , , , , , , , , , | Leave a comment