By Hilary Linton
1. Screening is a process of identifying, assessing and managing power imbalances. Its purpose is to assess if parties are appropriate for the proposed FDR process, and if it can be designed and managed in a way that empowers the selfdetermination, participation and safety of all. In screening interviews, clients have a safe place to disclose their procedural concerns. This is not evidence.
2. Screening enables FDR professionals to provide welldesigned, effective and safe processes that satisfy the procedural interests of both parties. It is highly unusual that a case is ‘screened out’ to court.
3. Effective screening is more important in family arbitration than mediation because:
- Parties can withdraw from mediation; once they have signed an Arbitration Agreement they are bound.
- Arbitration takes place informally in private board rooms without metal detectors or security, without police escorts, without access to family court support workers, and without the ability to obtain an immediately enforceable protection order.
- Arbitration is an intimate process. It offers many opportunities for interaction, bullying, threats and harassment that would not be detected by an arbitrator (or counsel) who do not understand the nature of the abuse and the unique means by which the abuser controls the victim. Private arbitration offers many more opportunities for abuse of process than do the courts or mediation.
- Arbitrations result in binding outcomes. A person who is too afraid to tell the truth (see MorganThompson, Schedule A, for an example) is more prejudiced by participating in an arbitration process without effective screening than in mediation.
- Lawyers do not protect their clients from safety risks. (See the tragic case of Kyle and Katherine Newman, Schedule B, for how challenging it is for lawyers not trained in screening to accurately identify risk, even when the client’s own family members have predicted the danger.)
- Parties who are not good candidates for private arbitration, for whatever reason, are more prejudiced by participating in a mediationarbitration without effective screening than in mediation. (See the complaint by a mediationarbitration client, attached as Schedule C, and also the case of Docherty v Catherwood, Schedule D.)
4. Screening policy should, therefore, be progressive, placing a priority on the principles of safety and empowerment of those who participate in FDR processes.
5. The policy in BC, clear on its face that all FDR professionals including arbitrators must screen their own clients, is the most progressive standard. (See Schedule E for details on the BC policy and practice.) The BC Attorney General has stated at a CLEBC training that the intent of the Act is for arbitrators and mediatorarbitrators, like all other family dispute resolution professionals, will do their own screening. Carol Hickman of Vancouver, the leading trainer on screening in BC, confirms that this is the practice that is being taught.