Screening for Power Imbalances

Under Ontario law, family arbitrators and parenting coordinator have a duty to ensure that the parties are first “screened” to ensure that they are suitable candidates.

Screening is a long-established first step in mediation; Ontario’s accredited family mediators are required to do it by their Standards of Practice. Screening, however, is new to arbitration.

Screening is a simple concept. It’s purpose is to ensure that parties choose the process that is best suited to their personalities, circumstances and needs. The assumption is that the professional— the mediator or arbitrator– has a responsibility to make reasonable enquiries because he or she is in the best position to make this assessment. What constitutes a ‘reasonable’ enquiry is different in mediation than in arbitration.

Screeners are looking for anything that might make one or both parties feel particularly vulnerable. This includes mental illness; drug or alcohol dependencies; physical illness; challenging personalities; intense anger or blame; a history of domestic violence; depression, and so on. The screener is not going to judge or blame a party, nor is the screener going to conduct a clinical investigation. They are only going to find out what each person is worried about, and assess whether the process can be designed to address those concerns.

For instance, two lawyers and their clients may all wish to retain a certain mediator. It is the mediator’s responsibility to screen the parties to ensure that his or her mediation process is in fact a good choice for them. If not, it is the mediator’s responsibility to help the lawyers and their clients choose a better process.

In mediation, the mediator typically meets with each party separately, before mediation starts, to screen the parties and, assuming they are good candidates, to assess how to structure the mediation so that it will work best for them.

In arbitration, screening serves the same purpose. The screener’s function is to ensure, as best he or she can, that both parties will be able to fully, freely and safely participate in the arbitration process. If the process is a mediation-arbitration, the regulation under the Arbitration Act permits the mediator to do the screening as he or she usually would. If the process is an arbitration only, the regulation requires that a third party conduct the screening, and that this person provide the arbitrator with a “report” about the screening.

At Riverdale Mediation, we take our responsibility for screening seriously. We believe that screening is an important first step in arbitration. Arbitration clients are screened in a manner we feel best accomplishes the purposes of screening. If the process is mediation-arbitration, we will meet each party separately before the mediation to do the screening, as we do in all mediations. If the process is an arbitration alone, we ask both parties to meet individually with a third party screener who will provide us with a prescribed report.

The regulation under the Arbitration Act that deals with the screening requirement is quite vague and the issue is not without some controversy. There are several accepted screening processes in use; each arbitrator will choose the screening process that he or she feels best suits the intention of the regulation.

For more information about screening in mediation and arbitration, click here.