The following excerpt from “Safety Planning in Family Law Cases: An Emerging Duty of Care for Lawyers?” is part 1 of a 3 part series which offers some helpful suggestions for safety planning and screening in high-risk cases.
- Take all clients through extensive screening interviews before choosing a dispute resolution process and a professional to provide that process. Ensure that best screening practices are followed in any mediation, arbitration or med-arb process in which you are participating. Become informed about those best practices. Take screening seriously.
- Do not make assumptions about the risk involved in any case, no matter who the parties are, what their incomes are, what the issues being negotiated are, and who their lawyers are. High risk cases cut across all personal and professional demographics.
- Mediate whenever possible and appropriate, using a mediator who follows the screening protocols and Abuse Policy of the Ontario Association of Family Mediation. (See Wainwright v Wainwright for judicial comment on best screening practices in family mediation and arbitration.32) If mediation is not an option because the parties need more support, consider collaborative process. Adversarial lawyering and approaches should be avoided.
- Never let clients be alone together to discuss settlement options. Not during a mediation, negotiation or four-way meeting, even if they ask to be left alone. Never assume that you have accurately assessed risk and do not take unnecessary risks with your clients’ safety. Risk assessment is hard to get right, and even the most seasoned professionals make mistakes. Err on the side of caution when you can.
- Arrange, as a rule, to have the vulnerable person arrive last for mediations, meetings or at court, and have the potentially dangerous person arrive first. Have the vulnerable person leave first, holding the dangerous person back long enough for the first party to be assured that they will not be followed.
- Ask clients what process will make them feel safe and empowered. Discuss process options with clients from a safety planning, power balance perspective. Elicit from clients all concerns they may have about a process. Be adaptable in how you practice and be prepared to require accommodations for clients in all family dispute resolution processes. If you cannot address a client’s concerns, recommend another process.
- Have separate waiting areas and as a rule do not permit parties to wait alone together at any time, either for mediation, arbitration, four-way meetings or at court.
- If you are using shuttle mediation, ensure that clients’ caucus rooms are far apart and that neither party knows what room the other is in.
- Train staff and colleagues to understand the basics of risk and safety planning, and have them familiar with your standard safety protocols at the office.
- Create a safe environment for clients to disclose their fears and concerns to you as lawyer, mediator, parenting coordinator or mediator-arbitrator.
Excerpt from “Safety Planning in Family Law Cases: An Emerging Duty of Care for Lawyers?” by Hilary Linton
