I became convinced of the necessity of “screening” in family law cases when, after 15 years of litigating them, I took a four-day course with Des Ellis at York University in Toronto.
Based on his studies of couples in court-connected mediation, he developed a series of questions that, when asked of both parties, are highly predictive of violence taking place during the mediation process.
I found it incredible that such a tool existed, and that lawyers did not seem to know about it.
Lawyers, including of course collaborative practitioners, often put their clients together in four-way meetings, as I did for many years, without fully understanding the dynamics of their relationship. What I now know after many years of doing mediation is that the risk of harm coming to a party– or a child– as a result of engaging separating couples in a negotiation process of any kind is much greater, and much harder to detect, than I realized when I acted as an advocate.
The risk is not just of someone being beat up or killed if they don’t behave during the four way meeting or mediation. It is also of a child being harmed in retaliation. Or of a bad deal being made because, unbeknownst to the lawyers or the mediator, a party was threatened with a bullet the night before.
The other critical finding of Des’ research is that mediation, when done properly, including screening, is safer for victims of violence than litigation or adversarial negotiation in that they were less likely to be re-assaulted if they were mediating. The research connects aggression and anger with the feelings of disrespect and helplessness generated by the adversarial process of blame and judgement.
Unfortunately, this work was done before collaborative law took off; my guess however is that collaborative cases would be safer than litigation and adversarial negotiation.
What is “screening” then? It is first and foremost an assessment of indicators of coercion and control in a relationship. People involved in such relationships are least likely to be good mediation (or collaborative law) candidates. Screening goes well beyond physical protection however.
When we screen we are looking for any factor that would put into doubt the ability of one or both parties to fully, voluntarily and effectively negotiate. Screening is 100% about the process; we ask only how each person is feeling and do not judge them or the answers. We only want to know whether each of them feels that it is emotionally and physically safe to conduct the negotiation (or arbitration) processand, if so, how best to do it. And, if not, how to safely get them into a better process for them.
People in relationships of power and control, or suffering from depression, rarely admit it to their lawyers. It is possible that lawyers will miss important information if each lawyer assesses the ability of his or her own client to participate in the process but no one screens both parties (separately always).
I cannot count the number of cases I have had, as a mediator, where I learned really important information in the screening stage that neither lawyer knew, information that was necessary to decide if they were good candidates for mediation, and how to best structure the process. This is not because the lawyers are not doing their jobs. It is because the only proven reliable way to assess which process is going to be safest and most effective for the parties (and the children) is one in which a trained and experienced person meets with each party separately, before deciding whether mediation will be safe and effective for them.
The interesting question is whether the screening process can or should be adapted for use in all family law cases–collaborative practice, litigation or traditional lawyer negotiations?
Would this better help parties choose the best process for them?
