(This article was first published in the Ontario Family Law Reporter, Volume 33, Issue 10, April 2020. By Hilary Linton)
With courts, for now, restricting services to all but emergency matters due to COVID-19, the demand for alternative dispute resolution services is growing exponentially. The need is greater than ever to ensure that those processes put issues of power imbalance and safety of clients and children first.
Private mediation or adjudication is not appropriate in all cases. Professionals should assess suitability for diversion away from court through the practice of ‘screening’ for power imbalances, including those arising from family violence.
The purpose of screening — to determine if a case is appropriate for diversion out of court, and, if so, how any power imbalances can be effectively managed — and the protocols to be followed are the same regardless of the dispute resolution process under consideration.
The overall utility and effectiveness of family arbitration has been enhanced by Regulation 134/07 under the Arbitration Act; it adds a specific screening requirement as well as other enhancements.1 Because of the harm that can be caused by private adjudication, screening for arbitration is even more important than for mediation in a practical sense. Legally, it is likewise more important given that the only legal professionals in Ontario who have a statutory duty to ensure screening is done and to take it into account in all they do, are family arbitrators (and parenting coordinators.) The meaning of ‘due process’ in the context of private, for profit-dispute resolution, must evolve accordingly.
As many of the senior family law professionals who offer private adjudication services were trained in an era before these concepts were embedded in our practices, it is important that we develop a common understanding of screening, its purpose and its value to clients and professionals alike.