I joined Raj Anand, William Horton and Yasmeena Mohamed on a panel called “Effective Mediation Briefs and Tactics: tips from mediators and arbitrators.”

We were joined by a full room of young and interested lawyers who were participating in the sold-out full day conference, followed by a ten-course banquet.

I learned during our panel discussion that there are not as many differences among family, labour and business mediators and arbitrators as one might expect. Counsel, party and mediator preparation before the event goes a long way to making the process a useful one. And in all cases, it is critical for lawyers to understand their own client’s needs to make sure they select the mediator or arbitrator best suited to the case and the needs of the parties.

Family and labour/human rights mediators often meet with parties who do not have lawyers, resulting in a less legally-focused and more interest-based process than the typical business mediation. But when it comes to arbitration, family arbitrators are required to apply Ontario/Canadian law and provide appeal rights, resulting in an arbitration process that is probably more caselaw and statute-focused than a typical business or labour arbitration, which generally interpret contracts.

But in all cases, the process itself is much the same. Parties need to understand their legal rights and their non-legal interests and goals in order to be effective participants in mediation and arbitration. They need to be pre-screened, to varying degrees, so that the mediator or arbitrator can be sure that they are suitable candidates for the process and also that the mediator/arbitrator is the best match for the parties. The mediator is wise to meet privately with the parties or counsel before starting the process, as much of the work is done in pre-mediation and pre-arbitration. And the parties need to understand the pros and cons of hybrid mediation-arbitration processes before they agree to participate.

The ADR options for clients today are diverse, sophisticated, and evolving. It is the lawyer’s job to ensure that the client is accessing the best possible dispute resolution process for that client, and to help the client be as prepared as possible to fully and effectively participate.

The answer is not a simple one.

In order to effectively separate or reconcile both parties need to be on the same page. It is common for one or both parties to have conflicted feelings about their relationship and the decisions they made. This is normal and expected as your relationship begins to change. When a couple begins mediation they need to discuss what their joint goals are; is reconciliation one of them? If it is, the mediation should adjourn so that the parties can attend counseling together. If only one person wants to discuss reconciliation, the issue cannot be mediated.

By the time most people call a mediator, they have already agreed to separate. Many have been to counseling already and feel that they have done all they can to try to salvage the relationship. They are usually ready to move forward in their lives.

Even so, it is not uncommon for one or both to want to keep the “door open” to a possible reconciliation down the road. Although mediation is not couples counselling, the process tends to build the good will, patience, understanding and personal affection that is required to rebuild a broken relationship.

It is rare that parties entering mediation exit the process as a couple again. But it does happen, sometimes when the parties themselves least expect it. Mediation is a fluid and powerful process that can produce unexpected outcomes.

Mediation should never be used if there has been violence or abuse in the relationship.

Research shows that a startling number of women who are separating from their male partners have suffered physical violence at the hands of their partners. One of the most important ethical guidelines for mediators is that they should “do no harm”. There is a great volume of mediation theory suggesting that mediation will be unsafe and unfair for such women, making this is an extremely difficult and politically sensitive issue.

However, mediators, even more than family lawyers, study the dynamics of violence and abuse and use “screening tools” to learn whether either party in mediation has suffered from physical violence or emotional abuse. Most mediators are well-trained and experienced in using processes that address safety and fairness for women and men who have experienced violence and/or abuse but want to try mediation anyway. And recent Canadian research shows that women who have experienced violence in their relationship are probably safer in mediation than if they are negotiating with lawyers or are litigating. (SeeMediation Facts and Figures for more information.)

Given the adversarial nature of legal proceedings, including the signing of affidavits, this finding is not surprising. One study shows that victims of relationship violence felt as empowered by the process as non-victims. (SeeMediation Facts and Figures). Provided that the mediator is well-trained to screen for and recognize the existence of violence between the parties, has sound instincts and judgement, and is experienced in administering the various process techniques for addressing the presence of violence, mediation may well be the best option for victims of violence.

Stay tuned next week for Myth Eight. . .

Can’t wait? Click here for to read them all.

Mediators are biased in favour of joint custody.

Although research shows that shared custody is more likely to result in mediation than litigation, this does not prove that mediator bias is the cause. Most mediators have no preference about the outcome of the mediation at all; their only bias is about the process. Mediators must ensure that the process is a fair one, and that each party has equal and fair opportunity to hear and be heard. Although many mediators are knowledgeable about the benefits of shared parenting, they also believe that parents in mediation are best able to decide what is best for their children. A good mediator is capable of focusing her efforts on the needs of the parties to the mediation, and helps them each achieve their own goals as much as possible.

The statistics probably reflect the goals of those attending mediation, rather than the bias of the mediator. Research shows that people who choose mediation have more confidence in the other parent’s abilities, are better able to acknowledge the other spouse’s positive qualities, and are more accepting of their share of the blame. As such, they are more willing to resolve the conflict in a way that takes the other parent into consideration. (Mediation Research, K. Kressel and D. Pruitt, Jossey-Bass 1898, p. 266-270.)

Stay tuned for Tip Three next week….

Can’t wait? Click here to read all of the tips. 

Mediation is only for people who communicate well with each other.

Many people who come to mediators are not speaking to each other. And almost all have serious problems in their communication. Mediators are professional communicators whose skills include helping people speak to and listen to each other in constructive ways. Mediators use many different techniques and processes to help people reach agreements– even those who feel they cannot be in the same room together, let alone find common ground on matters they seriously disagree about.

Stay tuned for Tip Two next week….

Can’t wait? Click here to read all of the tips. 

Based on his studies of couples in court-connected mediation, he developed a series of questions that, when asked of both parties, are highly predictive of violence taking place during the mediation process.

I found it incredible that such a tool existed, and that lawyers did not seem to know about it.

Lawyers, including of course collaborative practitioners, often put their clients together in four-way meetings, as I did for many years, without fully understanding the dynamics of their relationship. What I now know after many years of doing mediation is that the risk of harm coming to a party– or a child– as a result of engaging separating couples in a negotiation process of any kind is much greater, and much harder to detect, than I realized when I acted as an advocate.

The risk is not just of someone being beat up or killed if they don’t behave during the four way meeting or mediation. It is also of a child being harmed in retaliation. Or of a bad deal being made because, unbeknownst to the lawyers or the mediator, a party was threatened with a bullet the night before.

The other critical finding of Des’ research is that mediation, when done properly, including screening, is safer for victims of violence than litigation or adversarial negotiation in that they were less likely to be re-assaulted if they were mediating. The research connects aggression and anger with the feelings of disrespect and helplessness generated by the adversarial process of blame and judgement.

Unfortunately, this work was done before collaborative law took off; my guess however is that collaborative cases would be safer than litigation and adversarial negotiation.

What is “screening” then? It is first and foremost an assessment of indicators of coercion and control in a relationship. People involved in such relationships are least likely to be good mediation (or collaborative law) candidates. Screening goes well beyond physical protection however.

When we screen we are looking for any factor that would put into doubt the ability of one or both parties to fully, voluntarily and effectively negotiate. Screening is 100% about the process; we ask only how each person is feeling and do not judge them or the answers. We only want to know whether each of them feels that it is emotionally and physically safe to conduct the negotiation (or arbitration) processand, if so, how best to do it. And, if not, how to safely get them into a better process for them.

People in relationships of power and control, or suffering from depression, rarely admit it to their lawyers. It is possible that lawyers will miss important information if each lawyer assesses the ability of his or her own client to participate in the process but no one screens both parties (separately always).

I cannot count the number of cases I have had, as a mediator, where I learned really important information in the screening stage that neither lawyer knew, information that was necessary to decide if they were good candidates for mediation, and how to best structure the process. This is not because the lawyers are not doing their jobs. It is because the only proven reliable way to assess which process is going to be safest and most effective for the parties (and the children) is one in which a trained and experienced person meets with each party separately, before deciding whether mediation will be safe and effective for them.

The interesting question is whether the screening process can or should be adapted for use in all family law cases–collaborative practice, litigation or traditional lawyer negotiations?
Would this better help parties choose the best process for them?

One of the great appeals of mediation over collaborative practice or litigation is that the two parties share the fee of one mediator. It is for many people an inexpensive process when compared to the alternatives.

But many clients make the mistake of assuming that they do not need a lawyer. Or that they do not need to bring their lawyer to the mediation.

It is almost always good to begin the mediation process with just clients and mediator. It gives the mediator a chance to help focus both parties on what they need to make informed decisions, how to get them that information, and what they both want and need to get out of the process.

Separation is an intensely emotional and conflictual experience for most. In the early phases of mediation, it can be quite effective for the parties and the mediator to work through these difficult issues.

We find that it is helpful for the parties and the mediator alone to deal with issues of trust; financial disclosure; emotional needs of the parties and the children; parenting options and concerns; budgets and financial needs; options for valuing assets; and identification of the real areas of disagreement.

Often, the parties can continue the mediation without their lawyers at the table, taking their final settlement proposals to their lawyers for advice closer to the end of the process.

But many separation negotiations involve complex facts and difficult legal issues. The mediator cannot provide legal advice. It can be frustrating for the parties and the mediator to have to stop the mediation so that the clients can go and meet with their lawyers.

And the worst outcome for anyone is if the parties think they have reached a tentative settlement in mediation, only to find that their lawyers feel something important was overlooked. This can lead to delay and unnecessary expense, not to mention emotional frustration. Far better to have the lawyers at the table and avoid this risk.

Family lawyers have enormous experience with circumstances that may seem unique to the parties. And almost all have taken mediation or collaborative negotiation training.

That experience and training makes lawyers a great asset in the mediation process. It is often a good investment to have both lawyers at the table when the time comes to generate options for resolving strong differences of opinion, or interests that seem to be polar opposites.

Another great way to maximize legal dollars in mediation is to have both lawyers attend the final meeting, for the purpose of ironing out the remaining details and getting an agreement signed. This avoids the common problem of the parties leaving the last meeting believing they have a deal, only to find it unravel in the negotiation of the details.

There are many mediations where the parties and mediator are well able to work through the issues without having lawyers present. But, whenever possible, it is our experience that the process works better if the lawyers are at the table.

Milka Vujnovic is a lawyer and mediator from Hamilton Ontario. Her paper summarizes the research of York University’s Des Ellis and Noreen Stuckless in their ground-breaking 1996 book, Mediating and Negotiating Marital Conflicts.

Their work still stands out in the field for its empirical integrity. Des Ellis is the creator of the DOVE, a tool for mediators to use when assessing whether a case is appropriate for mediation. The DOVE tool is one of many used by mediators around the world but remains the only one empirically tested to predict the chances of a person being physically harmed during the mediation process.

I really like this summary on Milka’s website and I hope you read it.

A Newmarket judge has recently set aside a separation agreement because of domestic violence.

In Morgan-Thompson v. Thompson, the parties had signed a separation agreement by which the wife transferred her interest in the house to the husband for $1, and accepted $50 a month for child support for two children living with her. Each of the parties had legal advice on a second agreement transferring the house.

The court found the agreements to be signed in circumstances of “fear and extreme duress”, and set them aside.

Here is what the judge found:

“(the wife’s) evidence was that the physical “beat-downs” , as she referred to them, began when (the child) was a toddler…. including having a phone broken on her head, being punched in the jaw, being pulled by her hair, being kicked, being punched in the stomach, and being threatened that she would be burned with a heated iron. These were not described as handful of incidents, but an ongoing reign of terror, including the characteristic makeup or “honeymoon” period following violent outbursts. The violence was also aimed at the applicant’s possessions, including having her computer smashed, her vehicle door kicked and sun visor ripped off, and her clothing disposed of. Additionally, she was subject to being followed, being driven off the road, having her purse stolen, being told that she would be killed, being told that any man she would be involved with would be killed, and being shown a bullet. The applicant kept all of this a secret from her family and her friends until after her separation.”

The circumstances under which the separation agreement was signed is important. The day before, the husband showed the wife a bullet and said it was meant for her. Then and there, she agreed to transfer the house to him. The next day, he drove her to a lawyer’s office to sign the agreement. This was her so-called “independent legal advice.”

Needless to say, the respondent denied having done any of these things except kicking a door…. classic minimization and denial. The wife’s conduct was classic too: she told no one about the violence. And she gave up on hoping the police would help after calling twice during the marriage and receiving no support.

The decision should stand as a reminder to all family lawyers, mediators and arbitrators: this happens….. more often than we know. We need to carefully screen all family cases so we can know what is going on between the parties. It is not enough for each lawyer to ask his or her own client whether there is any domestic violence between them— both clients are apt to lie unless a skilled and experienced “screening professional” meets them both.

I hope this case is well-read.

Christine Kim and fellow speakers at the AGM OAFM

I was one of the presenters at the OAFM Annual General Meeting May 27, along with Phil Epstein, Antoinette Clarke and Trish Thomas. The topic was “culturally competent mediation.”

The subject is challenging because it requires critical self reflection. One must be cautious of coming across as condescending on a topic that may seem at first to be quite common sense.

Before we begin the discussion, we need to transform our view of what cultural knowledge is, how it is acquired and how it can be used to promote cultural competence in mediation.

The ethnic demographic of my practice is broad; from recent to second-generation immigrants; and variously mixed racial and ethnic marriages. No simple formula will help a mediator work in this context.

Instead of looking at culture as discrete categories of  cultural factors, I suggest we think of the cultural narratives that course through people’s lives. There are a great many cultural influences on each of us; which ones are dominant will depend on the circumstances, and will also evolve over time. Each of our identities will change in response to particular contexts and as we experience life.

Culture is more about the process by which people actively give meaning to things and less about a discrete set of ready-made assumptions about a specific group of people. Mediators will do well to recognize that cultural “categories” are constantly fluid, contradictory, and complex.  This  understanding can open doorways to our understanding and analysis of cultural differences.

Cultural competency is not a one-time skill to be achieved; rather it is a process that requires  continuous learning and self-reflection.

Toronto’s diversity is a reflection of our global community.  As mediators, we are responsible for critically evaluating how we approach mediation in creating an environment that is inclusive for all.