Should family mediation be mandatory?

In Ontario we are lucky. The province funds extensive free and subsidized mediation services for separating couples, whether they are in court or not.

Up to 8 hours of mediation is available, at subsidized rates, for all issues— parenting, support, property division. The statistics show high rates of agreement and client satisfaction.

But some feel that voluntary mediation is not enough and that it should be made mandatory. In particular, a recent report written by a highly respected group of judges and other stakeholders has recently recommended mandatory “Consensual Dispute Resolution”. We have spoken out against this idea before.

One of the challenges with mandatory mediation is that it removes voluntary participation. One of the fundamental elements of successful dispute resolution. Also, it puts victims of violence in a no-win situation by forcing them either to publicly disclose the violence in a process that may not be sufficiently resourced to keep them safe– which could put victims and children at risk– or to participate in a potentially dangerous process without disclosing it, for fear of the consequences of disclosure.

There is a dearth of research indicating that mandatory mediation is better than the alternative that we believe to be safer, less expensive and more effective: mandatory intake for mediation with voluntary participation thereafter. (subject to the discretion of the mediator on issues of power, control and safety.)

A recent study of a three year mandatory (free) family mediation project for parenting disputes in North Dakota provides some insight into what is needed for such a program to achieve success:

    1. almost 40% of cases were rejected for mediation at the start due to protection orders.
    2. the mediators were given extensive training in understanding and screening for family violence dynamics and safety planning.
    3. 84% of participants were represented by counsel at mediation.
    4. mediations began with confidential intake/screening meetings where mediators identified and assessed power imbalances, violence and safety risks, and engaged parties in safety planning if such risks were identified.
    5. settlement was not considered a priority of the project.
    6. all settlements reached in mediation were subject to rescission by either party within 5 days.

It is fair to assume that very significant resources were devoted to this project.

The settlement rate reported for parenting disputes is 50% full agreement and 26% partial agreement, with 10% of these rescinding. These are lower settlement rates than those achieved in our voluntary mediation program in Ontario. And although the satisfaction rates are very high (87% reported overall satisfaction– similar to the satisfaction results we see in Ontario) only 65% of participants are completing the satisfaction surveys, calling into question the validity of the high satisfaction ratings.

The other troubling aspect of the program is the extremely low number of cases–as reported by the mediators– with a power imbalance that affected the outcome. Only 7% of all cases were considered to have such an imbalance of negotiation power— which seems unrealistically low. Further, the mediators are asked to describe the indicia of domestic violence and the steps they took to address the issue. The answers to this question are troubling, as it appears that many mediations are proceeding without extensive safety planning, despite the report’s claim that the mediators possess sophisticated skills in this area. The information provided by the mediators does not necessarily support such a conclusion.

The good news for the North Dakota courts is that the time between filing and disposition of cases has been reduced by at least 25%, and the percentage of cases that come back to court has dropped by about 60%. These are encouraging stats for today’s overburdened and underfunded family courts. Further, participants by and large genuinely valued the process and gained more from it than they expected. But it must be remembered that the vast majority of participants in this study had legal counsel. In most family courts, the unrepresented greatly outnumber the represented.

There is a lot of work to be done to design an effective and safe family mediation program. It is suggested that the best ones will include mandatory judicial referral to confidential mediation intakes, with extensive screening and safety planning features, followed by voluntary mediation that is carefully designed, and delivered by highly trained specialist mediators, and well funded access to legal support. To do this well requires significant and dedicated resources. The North Dakota project is well on its way towards meeting these objectives. But in Ontario, we too are well on our way to what we propose is a better process. Judges in Ontario have the authority under the Family Law Rules to order parties to a free mediation intake. We hope that more judges start using this Rule, and that more lawyers and parties start asking them to order mediation intake as well.