1. What is “screening”?
2. Why are arbitration clients being screened?
3. What is meant by “power imbalances”?
4. What are the key elements of a screening process?
5. Why is screening important?
6. Who should do the screening?
7. Can I bring a third party support person?
8. What kind of training should screeners have?
9. What are some of the risks associated with screening?
10. What should the “report” of the screening say?
11. Can the results of a mediation screening be used for a subsequent arbitration?
Screening is a triangulation process that has been used by mediators for years to help them provide safe and balanced mediations. The mediator meets separately with each party, before agreeing to take the case, and elicits specific information that will help the mediator “diagnose” their complex relationship dynamic. The main purpose is to ascertain whether bringing the parties together in mediation could put either of them or any child at risk of physical or emotional harm. The secondary purpose is to assess whether and how the parties can best negotiate at an even table. It is important to note that screeners do not ask parties to incriminate themselves; they only ask each party what their concerns are about the other person and the process.
Formal screening has not historically been part of family arbitration, though many senior family arbitrators have always done some form of screening. That changed with the passage of a regulation under Ontario’s Arbitration Actwhich requires all clients in family arbitration to be screened for power imbalances and domestic violence before signing the Arbitration Agreement. The government introduced this requirement to protect vulnerable people (especially isolated immigrants and abused women) from being coerced into arbitration processes without being fully able to participate safely due to violence or dramatic power imbalances.
In the mediation context, anything that impacts a person’s ability to negotiate is potentially a source of power or powerlessness. The most significant source of power is a person’s alternative to a negotiated agreement. The better one’s alternatives look, the more negotiation power that person will have. Other sources of power range from personality factors — a manipulative, combative narcissist will probably have more power in mediation than a person who seeks to accommodate and avoid conflict — to financial resources, mental illness, drug or alcohol abuse, experience with negotiation, and ability to tolerate conflict. A screener’s job is to assess the parties’ respective sources of power and structure a process that will enable them both to negotiate in a safe and constructive mediation. In arbitration, the goal is to ensure that the parties are able to fully participate in the process.
Screening is quite sophisticated. The same person should screen both parties, as that is the most effective way to assess the relationship dynamics. It must be confidential so that both parties are able to speak freely without fear of the consequences of disclosing violence. The process can be quick or it can be lengthy— people who are living in fear for their safety or that of their children are unlikely to be willing to talk about it. There are a number of useful “screening tools” in circulation, and most experienced screeners have adapted these for their own practices and styles. Probably the most important element of a good screening process is what is done with the information. The information is used to design the safest possible process for the parties; it is also used to determine if, when and how to terminate it. And all screening information must be kept strictly confidential for safety reasons, even if the process is terminated. This is a matter of training, skill and experience.
When working with new clients, I do not rely on my instincts or impressions because abusive relationships are often sophisticated, complicated and hard to detect. A serious imbalance of negotiation power will affect any mediation-financial, parenting or other. Having counsel present is one way to achieve a more balanced negotiation, but unless screening is done, counsel often are unaware of the real dynamics driving their clients. At a minimum, screening makes for more effective mediation. And there is always a risk that the abuse or violence is so serious and dangerous that no mediator or arbitrator should take the case, even if lawyers are in the room. These are the rare but real cases involving “relationship terrorists”-people who patiently and carefully plan, stalk and set out to harm or kill the other person; where the violence or abuse is so severe and so dangerous that a mediator’s or arbitrator’s failure to detect it, even with counsel present, could put a party, a child or the mediator-arbitrator at real risk of harm or death.
The regulation under the Arbitration Act does not specify either who the screener must be, nor their qualifications. It says that in mediation-arbitration, either the mediator-arbitrator or some other person may screen. In an arbitration, it must be someone other than the arbitrator. In practice, mediators and mediator-arbitrators who work with clients whose lawyers are not present conduct their own screening. I am among the mediator-arbitrators who always do their own screening, even if counsel are present. Some experienced lawyers are screening their own clients, particularly in cases where there is a long lawyer-client history, there have been past four-way meetings, the issues are relatively unemotional and counsel feel the costs of third-party screening outweigh the benefits. Others refer both clients to the same person, often a mental health professional who is trained and experienced in screening.
Because mediation is a confidential process, people who are not parties to the mediation do not as a rule participate. Clients are encouraged to bring with them anyone whose support or advice they need to make good decisions. If both parties and the mediator consent and if the third party agrees to be bound by the terms of the mediation agreement, they can participate. Generally however it is preferable that third parties remain available in a separate area for consultation but do not participate in the actual mediation.
It is suggested on the website of the Attorney General that those doing screening should have the same training as that required of arbitrators; 14 hours of training in the dynamics of domestic violence, power imbalances and screening tools. The required elements of the training are listed on the website along with some of the screening tools that should be taught.
Screening is not fool-proof; some of the most serious cases will not be detected even by experienced screeners. As a result the process could give a mediator-arbitrator or the parties a false sense of safety. There are possible liability risks for people who conduct screening processes, particularly if they do not have the proper training or experience. Senior family practitioners who have taken the training have raised concerns that the process is vulnerable to abuse by malicious parties; a person for instance could provide false information to a screener to seek an advantage in a mediation or arbitration, particularly if the person doing the screening is both mediator and arbitrator. There is a concern that, notwithstanding the long standing practice (often contractually agreed to) that screening must be kept confidential, the notes of the screener might at some time be ordered to be produced by a civil or criminal court, making some lawyers unwilling to advise their clients to disclose information that could be quite important from a balance and safety perspective.
The regulation under the Arbitration Act is not very helpful. It says that if the screening is done by the mediator-arbitrator, he or she must consider the “results” of the screening; if the screening is done by a third party, the arbitrator must consider the “report of the results of the screening”. There are different schools of thought on what this report should include. Some arbitrators want detailed information about the issues that arose in the screening; others want as little as is necessary to enable them to decide whether to proceed with the arbitration and, if so, how. There is no pro forma report; however many are using a form that recommends for or against arbitration and includes any process recommendations the screener may have.
Clients will sometimes attend mediation, fail to reach an agreement, and agree to arbitration later with another person. It is inconvenient to ask them to submit to two different screening processes. It is possible to agree, at the time of the mediation, that the mediator will prepare a report on the results of the screening for the purpose of a later arbitration should that be necessary. Absent such an agreement at the time of the mediation, however, a mediator’s confidential screening notes should not be used for any other purpose. There is a big difference between a mediator’s screening notes and the kind of report to be provided to an arbitrator pursuant to the regulation. Also, a screening done for a mediation is probably different from one done for a later arbitration; and the passage of time may well justify a new screening, cumbersome as it may be for the parties.