We were studying the important topic of “screening for power imbalances” in mediation and arbitration. Although I was technically teaching the course, the “students” were so experienced and sophisticated that I am sure I learned as much from them as they did from me.
When I used to act as a family litigator, I would listen carefully to what my clients chose to tell me and thought I knew about their lives. Then I became a mediator, and took a course taught by Desmond Ellis that taught us how to ask questions to find out what was really happening in our clients’ lives. Des’ research, based on interviews with men and women going through mediation for their separations, showed that certain behaviours and characteristics could predict whether a person was likely to be physically harmed by his or her former lover post-separation. Things like extreme jealousy; threats of suicide or murder; prior criminal charges; controlling behaviour; alcohol or drug abuse; prior assaults, and, most importantly, the fact that one person tells you they are afraid of the other. Things that, as a lawyer, I may not ever have asked about or may have not taken as seriously as I should have.
That research led to a ‘screening tool’ that is commonly used by mediators during their first interviews with new clients, to decide whether mediation will be safe and appropriate for them. This tool, called DOVE, is just one of many that have been developed to assist mediators in their work. And now all family arbitrators in Ontario must take training so that they too will understand the importance of having their clients screened, to ensure that family arbitrations are taking place only where the parties are fully and freely participating, without fear of reprisals to them or the children if they say or so something “wrong” in the arbitration.
The subject is a difficult and complex one. And screening is not just about domestic violence. It is intended to help the mediator or arbitrator understand anything that exists in the relationship that creates an imbalance of negotiation or participation power that is so strong and so unfair that the mediator or arbitrator cannot address it in their procedure.
It is training that all family lawyers should, in my view have. I cannot count the number of times I have had lawyers in my mediations turn to their own clients and say “you never told me that!”. This is not because they are bad lawyers, it is just that traditional legal training does not include screening tools and procedures, and I think that is an oversight.