As private dispute resolution becomes more popular in family law cases, it is becoming more important that lawyers and clients understand the concept of “screening”.
There is a critical difference between private processes (mediation, arbitration, collaborative practice) and the court: Judges do not quit on clients. Mediators, arbitrators, litigators and collaborative lawyers can and do.
Screening is what happens at the beginning of every family law file to make sure that the client and the process are going to be a good fit. Each professional will do it in his or her own way, and some pay more attention to it than others.
Clients are entitled to know, as best they can, that they are being directed to the best process for them. Because it can be disastrous for a client to have their mediator or arbitrator quit the case.
Screening is best done by the same independent professional who will meet, privately and confidentially, with both of the parties. It is very hard to assess a case without meeting both of the parties involved. The screener will find out from each what he or she is concerned about, and what he or she needs in a dispute resolution process. And come up with good recommendations that are based on information from both.
The worst outcome for a client is to hire an arbitrator, spend thousands of dollars in legal and arbitration fees, only to have the arbitrator quit a year later because the clients do not seem to be such good candidates for arbitration after all. Or because the parties chose the wrong kind of mediator or arbitrator for their case or personalities.
For the cost of an hour of professional time, every person about to choose a family law professional could meet with an experienced screener, who could help both parties feel satisfied that they are making the best possible process choice.
Much better that the proper questions be asked, at the beginning. Because judges do not quit cases— and some clients are better off avoiding the private processes for that reason alone.
