Court-connected family mediation in Ontario is, by definition, a voluntary process of self-determination. It is voluntary in that judges do not have the power to order parties into mediation unless they voluntarily agree to do so by jointly selecting a mediator (s. 3(2) of the Family Law Act). Judges hearing conferences may order parties to mediation intakes pursuant to R. 17(8)(iii) of the Family Law Rules; but after the intake, the parties are free to choose to continue with the mediation or to not continue with mediation.
And it is voluntary in that clients are free to choose to mediate, and equally free to choose not to mediate. Their voluntary choice to not mediate should have no impact on either their legal rights nor their safety.
It is the mediator’s responsibility to ensure, to the extent possible by applying best practices, that both clients understand that the process is voluntary; that choosing not to mediate will have no impact on their legal rights, and to also ensure, if the clients choose to mediate, that they are doing so voluntarily at all times.
“Do no harm” is a guiding principle for family mediators. If a mediation process takes place and it was not voluntary on the part of one or more clients, the risk of harm is significant. If the process is not voluntary, it will not meet the standards of integrity set out by the SCC in Rick v. Brandsema (2009 SCC 10). That decision has set the standard for family mediators: given the emotional vulnerabilities of our clients, special care must be taken by mediators to ensure that the process is as free as possible from informational and psychological exploitation. If it is not, the process is not truly voluntary, and agreements reached are vulnerable to being set aside.
Achieving this standard is particularly important in the context of court-connected mediation, which by definition is voluntary, and where a history of intimate partner violence between the parties could compromise a party’s ability to negotiate without fear or duress, effectively negating voluntary participation and potentially causing harm including unfair outcomes, a perpetuation of power and control by one party over another and putting a party or child at risk.
The purpose of court-connected mediation services is to offer an alternative to adjudication to those separating couples who are good candidates for out-of-court negotiation and settlement. To qualify as “good candidates”, parties must be in an equal or equivalent negotiating position. If they are not in an equal negotiating position by virtue of intimate partner violence, mediation could lead to unfair results, could serve to perpetuate the power and control of one party over the other, and could put the vulnerable party at risk.
The article “Practice Guides for Family Court Decision-Making in Domestic Abuse-Related Child Custody Matters” (Gabrielle Davis, Loretta Frederick and Nancy Ver Steegh, 2015 Battered Women’s Justice Project) lists six benchmarks that mediators should ensure are met to be satisfied that mediation is voluntary:
- Is the relationship between the parties free from violence or threats
- Are the clients both free from the traumatic effects of abuse
- Are the clients’ interests relatively comparable
- Are both clients free to participate or withdraw from mediation without fear of harm or threats of reprisal
- Are both clients ready and able to deal in good faith and comply with rules and agreements
- Can both clients negotiate and advocate for their interests freely and act autonomously without fear of harm or threats of reprisal.
Our experience is that in some and even in many cases, a victim of IPV will want to mediate, notwithstanding that history. Family mediation can be empowering and successful for those who have experienced IPV, if it is designed with the principles of voluntary and safe participation in mind. An absolute rule that prevents clients with a history of IPV from using mediation is not respectful of the principle of voluntary self-determination. We have found that in many cases, victims of IPV feel that their best chance of reaching a settlement with which they can live is through mediation with appropriate supports and safety planning, and they do not want to litigate. These clients are able to meet the benchmarks set out above where their genuine preference is to mediate and where the mediator feels that in the circumstances the other criteria are also met.
In other cases, the real preference of an IPV victim is to not negotiate. Such clients will feel that their safety and their interests are better protected in a different process, usually in court. In these cases, the clients will not meet the benchmarks set out above and their case is not appropriate for mediation because it is not voluntary.
Mediators need to be trained to apply best practices in screening for IPV and power imbalances so that they can be confident that both parties are participating, voluntarily, in a process of self-determination.
