Important case on “screening” in family mediation-arbitration

(One in a series of three posts on the topic.)

A recent Ontario Superior Court of Justice decision illustrates the need for clearer regulation of “screening for power imbalances and domestic violence”, a mandatory component of Ontario family arbitration.

It also demonstrates the benefits for parties, lawyers and arbitrators in understanding that some methods of screening will be more effective than others; and in ensuring that screening is done before the mediation in a mediation-arbitration.

(To be clear: I think the world of the arbitrator in this case, and have the highest regard for both counsel as well.)

Screening is a form of early triage/risk assessment. It is designed to identify those cases where private dispute resolution is not likely to be fair, effective or safe. Risks to safety–personal, legal or emotional–and power imbalances are identified during screening interviews and decisions about whether/how to proceed are based on this assessment.

In Ontario, screening is routine in mediations conducted by accredited family mediators, and mandatory in arbitrations. Regulation 134/07.

Docherty v Catherwood, released August 15, is a trial decision that followed a failed mediation-arbitration.

The arbitrator, a respected retired judge, began the mediation phase of a mediation-arbitration before both parties had been screened for power imbalances and domestic violence. (Permitted under the Regulation.) The lawyers for the parties had provided certificates of Independent Legal Advice as part of the Arbitration Agreement. The husband’s lawyer certified that the husband “had been” screened; the wife’s lawyer certified that the wife “would be” screened.(Also permitted.)

Three months and tens of thousands of dollars later, when the mediation failed and the parties were preparing for arbitration, the wife met with a screening specialist. The specialist, a respected expert in family violence and screening processes, identified the wife as a victim of domestic violence, indicated that she was procedurally vulnerable and recommended against arbitration.

The arbitrator resigned and the parties went to trial. Notwithstanding the husband’s many witnesses, the trial judge preferred the wife’s evidence about the history of violence, found that she was victimized by violence, often in the presence of the children now aged 5 and 6, and awarded her sole custody.

(Many other issues were before the judge in this complicated case;Mr. Docherty was effectively successful on all issues other than custody, including being awarded substantial amounts of time with his children.)

Although the manner of screening used in this case is permitted under the Arbitration Act Regulation and is used by many Toronto arbitrators, there is a consensus among screening specialists that this is not the best way to assess which cases are suitable for private ADR, and that Regulatory change is needed to ensure screening practices reflect the purpose of the requirement.

Why do we care about safety and procedural suitability in mediation, arbitration and med-arb? Who should do the screening? What is the best way to do it? When should it be done? On what basis may an arbitrator certify, as he or she is required by Regulation to do, that the parties were screened for power imbalances and domestic violence? How should the results of the risk assessment be communicated, when and to whom?

And who should be responsible for the costs of a mediation-arbitration that fails because the case is “screened out”? (Mr. Docherty was asking, at the trial, that Ms. Catherwood pay $92,000 in costs for the failed mediation-arbitration.)

Docherty is not the first SCJ case to deal with this topic. Screening was discussed at length in Wainwright v Wainwright (2012),  a seminal and considered understanding of the process, its purpose and the best way to do it. (Wainwright was not mentioned in Docherty.)

There are some good reasons for parties to try mediation, arbitration or med-arb. The record is private, it can be fast, and the parties get to choose who will help them try to settle their case. In the case of med-arb, if the case does not settle, the same trusted professional will make a decision for them based on the evidence and in a process they have helped design.

However, if there is a significant imbalance of negotiation power, particularly one that arises from a history of family violence, any form of private dispute resolution can be dangerous, ineffective and/or needlessly expensive.

Risks include processes that are not designed to meet the needs of the parties; inaccurate assessments of credibility (because victims of violence can also be difficult people, which can be more prejudicial in the intimate context of mediation & arbitration); outcomes that are subtly coerced unbeknownst to the mediator, arbitrator or lawyers;  a party, child , lawyer, or mediator/arbitrator being threatened, harmed or killed;  or simply failed– and expensive– negotiations.

Hence, accredited family mediators must screen all clients before agreeing to mediate; and family arbitrators are required to certify that the parties were screened….. to ensure, as best we know how, that everyone who chooses this process is well-suited for it.

These risks are present even when the parties have lawyers. Research and experience tells us that lawyers often do not understand the power dynamics in their cases. This is partly because, unlike arbitrators, lawyers have no duty to take screening training, and partly because of the many barriers that lie between a client and his or her lawyer when it comes to disclosing such things as mental illness, depression, a history of violence, etc. (Read this story for more.)

Regulation 134/07 requires arbitrators to be trained to identify the different types of family violence; the factors and behaviours that predict post-separation harm, murder or murder-suicide; the appropriate steps to take when a mediator-arbitrator becomes concerned that such risks are present; and the ways to support both parties in finding a process that will be better, safer and less costly for them and their family (“safe termination”.) It also requires family arbitrators to certify that they have either screened the parties themselves (if a med-arb) or confirm that someone else has done the screening, and promise to pay attention to the results of the screening process throughout the arbitration proceeding. (“on-going screening”.)

The rationale for screening in arbitration is three-fold:

1–domestic homicide rates increase exponentially at and after the time of separation. A legal consultation alone increases the chance that an abused spouse will be murdered. Adversarial dispute resolution processes escalate risk further.

2–arbitrators are providing a private service with an often hefty price tag, one that requires parties to opt out of many rights: a court hearing with full appeal options, a public record, a court reporter, security, access to quick restraining orders, easy enforceability of orders, access to family court support (domestic violence) workers, the authority of a sitting judge, access to duty counsel, access to free or heavily subsidized court-connected mediation that includes extensive screening, and other features that benefit the vulnerable.

3–Once parties agree to arbitrate they cannot change their minds. In a med-arb,they can quit the mediation– but they must then proceed to arbitration.

Since screening was mandated for family arbitration in 2008 there has been disagreement about how to do it. Many mediator-arbitrators and arbitrators are relying on the lawyers to certify– in their certificates of ILA– that their respective clients have been screened. Although permitted under the Regulation, this is a poor practice for many reasons. Lawyers meet only their own clients; many lawyers are not trained to screen; and confidentiality cannot be maintained if each lawyer is reporting results of screening to the arbitrator. (More on this in the next post.)

For those of us who are also accredited family mediators, it is easy: we are trained and experienced screeners and we have simply incorporated screening practices into our mediation-arbitration work.

That means we meet each client confidentially, before agreeing to mediate-arbitrate a case, and find out what that person needs from us procedurally in order to fully participate. If our risk assessment suggests the case is not suitable for mediation or med-arb, we do not take the case and refer the parties to a process that we feel is better suited to them.  The process is supportive of each person; non-judging, non-fact-finding and purely focused on risk assessment and safety planning.

Some have expressed concerns about potential bias arising from confidential meetings with parties who may be arbitration clients. However, this is no different from caucusing, something we all do routinely. A great many mediation-arbitrations and arbitrations have been conducted this way and to my knowledge there are no professional complaints nor reported cases suggesting this is anything but the best practice.

If we are acting purely as arbitrators, we require both clients to attend with an experienced third party screener, someone whose skills and experience we trust, who reports back to us with procedural recommendations.

There are senior and skilled mediators and arbitrators who are not comfortable having such confidential meetings with their mediation and med-arb clients. In such cases, sending both clients to the same respected third party screener, and receiving a confidential report from that person, is the next best option.

Another concern is the cost of the added step of screening. The cost – about one hour of professional time for each party–is nominal compared to the fees clients pay to mediator-arbitrators and their lawyers; and a drop in the bucket compared to the costs of a failed mediation-arbitration.

In our next post, we will dig further into the risks that mediators, arbitrators, lawyers and clients may face when effective screening is overlooked.