During Ontario’s first FDRweek there was a well-attended workshop on family mediation-arbitration. Led by highly respected BC mediator-arbitrator Carol Hickman Q.C., the theme was clear: there are no standards of practice for family mediation-arbitration in Ontario and they are needed.
The “med-arb” process has become flavour of the month in family law. Most lawyers routinely add a clause in their separation agreements that require the parties to use private med-arb, rather than the courts, to resolve future disagreements.
There is good reason to consider med-arb in family cases. We do a lot of it here at Riverdale and it is a great process— when it is done well. The courts are not always the best place to work out family disagreements. It can take a long time to get in front of a judge. The court process requires case and settlement conferences anyway– so why not just go straight to a similar, but private, process? That way you get to pick your ‘judge’, have the case heard quickly and in privacy.
But private dispute resolution is not for everyone. All mediator-arbitrators have the same imperative: Do No Harm.
And so the first, most important step, of a family med-arb process is to screen the parties to make sure that they are good candidates.
There is a misunderstanding among many family lawyers that once the parties sign an agreement committing to future med-arb, that is final. This is not true.
Under Ontario law, all family arbitrators must first ensure that the parties have undergone an assessment for safety and suitability. It is the arbitrator’s responsibility to decide whether the case is appropriate for private mediation-arbitration. If not, the mediator-arbitrator has a duty to advise the parties that the case is not appropriate.
Getting back to our workshop then. Ms. Hickman explained that in BC, it is standard practice for all mediator-arbitrators to first meet with each client, separately and confidentially, to conduct an assessment of their ability to negotiate, their negotiation power, any issues of abuse or safety risks, and their personalities. Through this screening process the mediator-arbitrator gets the information they need to make the important decision: should I take money from these people, take them out of the courts and put them through a private process instead? Or would this family be better served in the courts?
FDRIO is a new, multi-discplinary professional organization. It will be creating standards of training, certification and practice for mediator-arbitrators in Ontario– as well as for parenting coordinators, coaches, and other FDR professionals. Working with professionals like Ms. Hickman is one way the FDRIO board of directors is ensuring that the best practices will be implemented in Ontario.
If you want to get involved in this challenging initiative, please visit www.fdrio.ca for more information.