Screening in family arbitration: what’s all the fuss?

The subject of “screening” in family arbitration continues to confound and confuse family lawyers and arbitrators, needlessly so.

Since the Ontario Attorney General passed a new regulation— requiring all family arbitrators to certify that the parties had been ‘screened’ for power imbalances and domestic violence before and during the arbitration hearing–lawyers and arbitrators have been debating what that means for them and their clients.

The confusion stems largely from a lack of understanding of what screening is, how it is done, and why.

Here are the screening basics. For a more detailed explanation of why all the fuss is for nought, click here.

1. The fundamental principle driving the screening process is “do no harm”. We have all had or read about divorce cases where it was learned, too late, about the true power dynamics in the relationship. No lawyer, mediator or arbitrator wants to participate in a process that might do harm to a party or a child. We screen to avoid this risk– as best we can.

Screening provides a safe and confidential way for parties to express their procedural concerns. The goal is to allow the mediator or arbitrator to have the information they need about the relationship between the parties to make two decisions:

(a) do I proceed with this case? If so

(b) how should it be structured to allow each party to participate to the best of his or her ability? And, if not,

(c) how do I convey my decision to not proceed or to terminate the process in a way that will keep the parties and children safe and direct them to a more appropriate process?

We do this because, unlike court, mediation and arbitration are voluntary processes.

2. Mediators have been screening both parties before starting mediation for more than 20 years. It is a simple concept. The person who is going to mediate needs to know if it is going to be safe and/or efective to put two formerly intimate people in a room together to negotiate a settlement. And how to structure the mediation to allow the parties to have the best negotiation they can.

3. The best way to make that assessment is for the mediator to meet with each of them confidentially before starting, to find out how they each feel about the process and whether they are ready to begin.

4. Screening for arbitration serves the very same purpose: to assess whether the parties are going to be able to participate safely and effectively in the process.

5. Screeners should not ask a person whether they have abused the other person; in a good screening process, no one need be concerned about self-incrimination. In any event, screeners (and mediators) are trained to not judge people. They do not seek to assess the credibility of what they are told. That is why any concerns about screening interviews leading to bias are also unfounded. The screener, who may well be the mediator-arbitrator, only wants to know whether a person is afraid of the other, or may be unable to participate effectively for some other reason. If a person is afraid, a private process like mediation or arbitration is probably not appropriate. If there are other concerns, the screener is only applying that information to determine appropriate process. If we trust mediator-arbitrators to have private caucuses with parties during the mediation process, we can trust those same trained professionals to treat screening information as it is intended; solely to assess the best process.

6. Research abounds that clients do not tell their lawyers the kinds of things they tell trained “screening” professionals. There may be many reasons for this, but regardless, both empirically and anecdotally, we know it to be true. This is why lawyers should not rely on their own “screening” of their own clients.

7. Additionally, it is difficult if not impossible to accurately assess a relationship without meeting both people. This is why both parties should meet with the same trained professional, in separate meetings, for screening.

8. Mediators are trained to work with tools to help them screen. They are required (if they are accredited) to conduct their own screening before starting any mediation process. That means that in any combined mediation-arbitration process (such as med-arb and parenting coordination) the screening should be done by the mediator-arbitrator, who should be qualified to conduct a screening interview. Parties and lawyers and mediator-arbitrators should all be clear about this from the beginning so that everyone understands what is happening and why.

9. If the process is arbitration only, the regulation prevents the arbitrator from conducting his or her own screening interview, out of concerns for possible bias (because arbitration is a very different process from hybrid mediation-arbitration). Then the screening should be done by a trained third party who is retained by the arbitrator. The screener should provide a brief report to the arbitrator on the results of the screening. The form of report should be agreed upon by the parties/counsel, arbitrator and screener beforehand. It should be limited to advising the arbitrator of any procedural recommendations resulting from the screening process.

10. Screening and reporting on its outcome, including communicating decisions to not proceed, should always be done in a way that protects the confidentiality of the process. If parties convey sensitive information to a screener, they must have confidence that this information will not, in any way, be provided to the other person or their lawyer absent rare exceptions. This goes beyond respecting privacy; it is a matter of safety. This is why even the lawyers for the parties should not be provided with any information about the screening process without the explicit consent of the parties, and why screeners are trained in specific procedures for safely terminating processes.

If these guidelines are kept in mind, screening for mediation and arbitration need not be a source of confusion. It is a valuable tool and, if done properly, should serve to enhance the confidence of all participants that the mediation or arbitration process will be a good one.