Judge over-rides med-arb clause in agreement due to power imbalance

In a fascinating decision out of St. Thomas, Ontario, a judge of the Superior Court of Justice has quashed the provisions of a family law settlement that required the parents to mediate-arbitrate future disagreements.

In Wainwright v Wainwright (2012 CarswellOnt 4113), Justice Nolan found that it was not in the best interests of the parties’ 4-year old daughter that they be forced to attend mediation-arbitration, even though they had entered into an agreement, with legal advice, requiring them to do so.

Justice Nolan looked at the history of the relationship between the parents before and since the separation and found that the power balance between the parents was such that mediation-arbitration was not an appropriate process for them. In particular, she found that the mother was afraid of the father, and that the father appeared to have little insight, making mediation-arbitration an inappropriate process.

The case provides the first overview from a Superior Court Judge of the process of “screening” in mediation-arbitration, quoting at some length the relevant provisions of the Riverdale Mediation website. She notes the importance of mediator-screening for power imbalances in all family mediations, noting that in this case there was no evidence that screening took place.

Justice Nolan also quotes the Policy on Abuse of the Ontario Association of Family Mediation, and extensive case law supporting her decision to over-ride provisions in an agreement that are not in the child’s best interests.

Interestingly, Justice Nolan notes that the child, who was only a toddler when her parents negotiated the agreement, was not represented in that negotiation, raising the very topical issue of how to incorporate a child’s perspective into family law cases, even when the child is small.

This case is a good summary of best practices in screening for mediation and arbitration, and raises some important questions for family lawyers and mediators.

In particular, Justice Nolan varied the parties’ agreement to provide that the parties shall mediate and may, if they both agree, arbitrate future disputes, but on condition that the mediator first screen the parties for power imbalances and suitability. Although we agree that screening is an important pre-requisite to family mediation, and also agree that it is appropriate for mediators to do their own screening in a mediation-arbitration process, we are not certain that a judge has jurisdiction to order screening.