By Hilary Linton
What are the fundamental principles of ADR? What are some basic screening concepts I should know before starting mediation and/or arbitration? What are mediators looking for when assessing for risk? Learn measures mediators use to balance power and keep parties and children safe.
Alternative dispute resolution (ADR) functions with three fundamental principles: ADR
- ADR is a voluntary process
- ADR is a fair process of self-determination and/or adjudication
- ADR will do no harm
Before engaging in any ADR process, the mediator should screen both parties to assess for risks of domestic violence and signs of power imbalances. There are some basic concepts that mediators should keep in mind while screening each client. These key concepts include:
- Conduct confidential supportive interviews with each party before a process is chosen. Intake forms are crucial.
- Ask each person about power in the relationship, including any violence they have experienced. DO NOT ask what a party did to the other.
- Not a fact-finding; intake is about subjective perception.
- Ask yourself as the mediator: Can each person fully and safely participate in this process? What do they need to do that?
- Ask questions to elicit information that is known to predict risk
Each party’s answers, combined with the screener’s instincts, observations, experience and skill will lead to a decision about whether the process is or can be made voluntary, self-determinative and will do no harm to parties or children.
What should professionals be looking for?
Family law professionals should be keenly aware of the many forms domestic abuse and violence can take. Screening tools like MASIC and DV-RAP are designed to predict the possibility of one party causing physical harm to the other. In a negotiation process, once imbalances and risks are identified, measures can be taken to design an ADR process best suited to the dispute. If there are major imbalances at play, here are some helpful strategies to manage them:
- Caucus, increase the structure & reinforce rules: take breaks, slow the pace of negotiations, use objective information in decision making.
- shuttle negotiation, co-mediation, split day mediation, long distance mediation via Skype
- separate arrival and departure times, separate waiting areas, use of supports/advocates, educate office staff
- require lawyers to be present
- coach the weaker party for how the process will go; confront stronger party about the impact of too much negotiation power.
- require a restraining order or counselling
If after screening it is determined that the proposed dispute resolution process will not be effective, fair, balanced and safe (emotionally and physically) for parties and children, the process should not go forward. Safe termination is recommended and parties should be referred to a more suitable process to settle their dispute.