Working with Unrepresented Parties in Family Law


The starting point for all discussions about working with unrepresented parties in family law is that they are the most vulnerable people in the system. One’s reasons for not having counsel do not matter; unrepresented parties are extremely vulnerable.5 The form and extent of identifying, assessing and managing such vulnerabilities will vary depending on whether the person doing the screening is the neutral or the advocate, and the following five factors:

1-What is your role—advocate, neutral, mediator-arbitrator, parenting coordinator?
2-Is one party represented or are both?
3-Where are the parties on the “separation continuum”?
4-Is the negotiation taking place in the context of a court case?
5-What negotiation process is being considered?

The pre-negotiation preparation required of neutrals and advocates can be divided into two categories: procedural work and substantive work.

Procedural work refers to the assessment of the needs of each party so that the best process is chosen, and is designed in the optimal way for settlement purposes. The substantive work involves a comprehensive assessment of the strengths and weaknesses of each party’s case, including the law, and the degree to which the parties have realistically assessed risk. This work takes place throughout the negotiation, but most importantly before it begins.

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What is Family Law Dispute Resolution?

IMG_0150[1]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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What is mediation? (a year-end rant)

roleplayingThis rant is for those (few remaining) lawyers who discourage their clients from trying mediation with the lame allegation that mediation is too “touchy-feely.”

It is hard to believe that, in this day and age, some lawyers still have such a patronizing attitude.

I recently had a client who was represented by one such lawyer. After the intake meeting, the client informed me that she intended to change lawyers. She wanted to try mediation but was being discouraged by her lawyer, who used the said obnoxious characterization.

After the client changed counsel, and after our second mediation session ( the lawyers did not attend but were kept informed of progress ) the client announced: ” This doesn’t feel very touchy-feely at all!”

So what is mediation? And why do some lawyers persist in discouraging it?

Mediation is a strategic, focused, fully informed and balanced process of negotiation. It is a ‘safe place to have difficult conversations’, meaning difficult emotions are accepted for what they are. I suppose this may be challenging to lawyers uncomfortable with or unskilled at handling strong emotions.

Mediation is very much a process of strategic negotiation. Hard bargaining is permitted. Taking positions is allowed. Bargaining with the strength of one’s legal rights, and taking responsibility for one’s legal obligations, is encouraged. Full, sworn financial disclosure is a must. Legal advice on process and outcome is always promoted and supported. In fact, we don’t let our clients reach binding settlements here unless their lawyers are present.

Mediation is a process that takes each person’s procedural needs into consideration. Each meeting is designed to make each person feel as safe and comfortable as possible. If that is “touchy-feely”, then we should be doing a lot more of it, because it leads to strong, balanced, voluntary and enduring settlements.

We do not countenance bullying in any form, not by the parties, not by the lawyers, not by the mediator.

If a person cries, or is angry, or is a “difficult person”, mediators try to understand why. When people behave badly, we try to find the reasonable reasons for the unreasonable behaviour– not so that we can have a group hug afterward, but because deeper analysis of what drives the conflict leads to better agreements.

Good mediators do a lot of research, reading, reflection and self-analysis. I litigated for 15 years and know that mediators work at least as hard as lawyers, sometimes harder, because we have two clients to satisfy. We work with two people who are vulnerable, damaged and afraid of their future. Whether they have lawyers or not, almost all clients have these fears. Good mediators definitely try to empower both parties to negotiate well with confidence, with the support they need, with full knowledge of the strengths and weaknesses of their settlement alternatives, and with full information and advice.

We know as well that clients who are living with abuse and violence are at the greatest risk of being harmed when they are separating– whether they have lawyers or not. Most family mediators are trained to identify, assess and manage risk far better than most family lawyers are. This knowledge and experience, which supports both parties because often they are both “victims” of some kind, helps us provide negotiation processes that can feel better and therefore work better for both parties.

It is hard to understand why all family lawyers are not almost always recommending mediation. Any client— whether in court or not– can access up to 10 hours of subsidized mediation (providing the case is assessed as appropriate by the mediator.) The rates are ridiculously low— a person earning $60,000 a year with 2 kids will pay $82 an hour through mediate393 inc. Yes, the mediators are subsidizing the lawyers!!

I recently had a half day mediation under the mediate393 program. Both lawyers attended. The clients between them paid $130 an hour for four hours of mediation……$260 each for a half day mediation with a senior family lawyer mediator. The issues were complex: income determination for self-employed individuals, spousal support quantum and duration, proper treatment of an inheritance and family trust income, plus some challenging parenting issues. The parties resolved almost everything because their lawyers were prepared with financial disclosure, the parties had attended a previous mediation without counsel and trusted the process, the mediator and each other, and they were ready to settle.

So no, we don’t sit in a circle, hold hands and sing kumbayah. And yes, we do care deeply about our clients and the quality of the process we give them. Fortunately, the majority of family lawyers get it, and use mediation to their client’s advantage as often as they can.

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Husband murdered after failed mediation

2006_0806July-Aug060187In a case that illustrates the connection between separation and murder, a man has been killed by his estranged wife following an unsuccessful attempt at mediation.

According to the story in the American Bar Association Journal, the wife went to her car after the mediation, came back with a gun and shot the husband. The mediation took place in a lawyer’s office in Tennessee on December 4.

For years we have been repeating the need for family lawyers, mediators and arbitrators to take proper training in Screening for Power Imbalances and Family Violence. This is not just training in understanding the dynamics of domestic violence– though that is a good start.

Lawyers and meditators have a duty to understand the various kinds of violence, and the tools and research that exists to help them predict the risk of harm coming to someone while a family law case is being negotiated.

It is well established that many domestic homicides are preventable. The risk factors that predict such homicides are also well known.

There is no excuse for a family lawyer, mediator, arbitrator judge or therapist to not be educated about these risks and know how to identify, assess and manage them.

Hilary Linton and colleagues will be teaching a three day workshop in screening for such risks April 7-9 2014. She is also teaching a 2-day workshop in Seattle with Bill Eddy, Rod Wells and Claudette Reimer July 20-21,2014 for the APFM.

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Want to become an accredited family mediator?

IMG_1758No jurisdiction– anywhere– has a better program of subsidized family mediation than Ontario.

Any separating couple can have their case mediated by accredited and experienced mediators. You do not have to be in court. In Toronto, the mediators are often family lawyers or mental health professionals themselves.

The subsidy is considerable– check the mediate393 website to see what you would pay based on your income.

As word gets out about this successful program, the demand for good mediators grows as well.

If you want to consider becoming a roster mediator, you must be an accredited family mediator– by either the Ontario Association of Family Mediation, the ADR Institute of Ontario, or Family Mediation Canada.

For more information on how to become accredited, click here. Our training program starts in January!

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Best Practices in Screening in Family Med-Arb

IMG_0995(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.

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