Screening is the first step in all family mediation, collaborative law and arbitration cases. The purpose of screening is to ensure that the parties and the process are a good match.
There are two options for doing it well. Either the mediator (or mediator-arbitrator) meets separately with each party, or an independent third party meets them both and provides a report back to the arbitrator or collaborative professionals.
Here are the reasons for careful screening in all cases:
- Judges don’t quit, but mediators and arbitrators can–and We have all heard of parties paying their lawyers and the arbitrator tens of thousands of dollars, only to have the arbitrator later quit the case because the parties were not good candidates for arbitration. How much happier those clients might have been to be ‘screened out’ at the start.
- Two stories are better than one. Some people are concerned about parties trying to manipulate the screening process. I have never seen that happen, but it is theoretically As a screener, I am going to be much less vulnerable to manipulation if I hear the story of both parties. And I will do a better job. Screeners do not judge nor decide who is telling the truth. But if we meet only one person, we have only one story. We are less likely to make a good recommendation on the basis of half the story.
- Due process matters. Arbitration is based on “procedural fairness”. The regulation under the Arbitration Act gives arbitrators the power to terminate or decline cases based on a screening report. If an arbitrator has a screener meet only one person, and the screener sends back a report that “this case is not appropriate for arbitration”, the arbitrator would be justified in terminating the But the other side might be quite upset. No one had asked them for their views. They had no input into the process that resulted in information that was used by the arbitrator to end the process. This is why it is ALWAYS best for arbitrators to refer both parties to the same third party for confidential screening if they don’t do it themselves that is.
- Lawyers may not know the whole story. We have learned that some clients will not tell their lawyers the most important facts about their relationship. Even if a client tells their lawyer about abuse, violence or control, the lawyer has only heard one side. Lawyers may not have the information they need to make an appropriate procedural recommendation for both The best person to do that is someone who has met them both and judged neither.
- Mediator-arbitrators should do their own screening. It helps both parties feel more comfortable with the person and the process, and helps the mediator- arbitrator understand better what each person needs from this negotiation. The mediation phase is more likely to be safe and effective for Screening is not a “fact-finding” exercise; it is only to find out if both parties are choosing the best process for them.
- The red herring. Some mediator-arbitrators are worried that they may become biased if they conduct the screening themselves. And yet, mediator-arbitrators routinely use a caucusing process…meaning they spend much of their time as mediators meeting with and hearing information from only one side. The parties and the counsel have accepted that this is part of the process, effectively agreeing to this kind of ‘bias’. So the answer to the concern about bias arising from doing your own screening is the same.
- It’s about safety. If one of the goals of screening is to keep people (including the professional) safe in mediation, arbitration or collaborative practice, the screener must meet both parties. It is not possible to achieve the goal of safety any other way. If, for example, the screener meets only one person, it then is obvious who provided the information that caused the arbitrator to terminate the process. This could, in some situations, expose the disclosing party or a child to a risk of retaliation. It is far better to let the screener meet both parties and allow them both to have some input into any decisions that the screener may make.
- It’s about good process design. One is likely to make better procedural recommendations based on what both parties have said they need.
- It is not about money. The cost of an additional screening meeting pales in comparison to the prospect of a badly chosen or designed process, litigation arising from an uninformed decision to terminate (or not terminate) a process, or claims that a mediator or arbitrator exposed parties or children to a risk of harm by failing to follow proper screening procedure.
- Screening is easy, effective and useful.
