Risks of Lawyers Screening their own Clients under the Arbitration Act Reg.

Those of us working in family law can count on one thing never changing: we are in a danger zone. Read more on the risks of not adequately screening your clients. 

Originally published October 2013 ©

The percentage of separations involving some form of family violence/abuse has remained steady at about 50%. The numbers are higher among cases in court. There are more cases still involving violence plus mental illness, job loss, substance abuse, depression or other significant imbalance of negotiation power that can indicate a safety or other risk.

The first six months post-separation, when the parties are often dealing with lawyers, are the time of highest risk to personal safety.

We know that victims of domestic violence are often too afraid, embarrassed or unaware of the seriousness of the risk they face to disclose it to their lawyers. The higher the incomes and social status, the more obstacles to disclosure.

And we also know that if you only ask questions about violence, you will miss a large number of potentially highly dangerous cases, because the dangerous power imbalances arise in relationships based on coercion and control; violence may be a relatively minor factor.

Cases may not be appropriate for private dispute resolution for many reasons: the parties are too far apart; they are too high conflict; one or both lacks insight; the parties are not governable enough to comply with the rules; one party lives in fear for their life or that of their children; one party is too depressed to participate effectively, etc., and the oversight of the court is required.

What does the Act say?

Under Ontario’s Arbitration Act Regulation, only family arbitrators are required to take training in assessing whether a case is suitable for private ADR, known as screening. Screening is a process of identifying, assessing and managing these forms of power imbalance, family violence and risk. Many family lawyers have not taken this training.

Most of us who provide ADR processes believe that we have the responsibility to provide, to the best of our ability, a safe, effective and appropriately-designed process of negotiation and/or determination. This duty can be implied by the Standards of Practice and Codes of Conduct of our governing organization (eg. the Abuse Policy of the Ontario Association of Family Mediation) or the law (eg. the regulation under Ontario’s Arbitration Act; in British Columbia, s. 8 of the Family Law Act. )

If neither the lawyers nor the mediator/arbitrator knows about a significant power imbalance resulting from coercive controlling violence, for example, the safety of clients or their children could be at risk by something as seemingly benign as sitting together in the waiting room.

Parties may participate in a process for which they are poorly suited, ungovernable, incapable of participating effectively. Victims of violence may, unbeknownst to the mediator-arbitrator or lawyers, be coerced. Subtle threats of retaliation, undetected by anyone but the victim, may prompt unbalanced agreements or irrational behaviours. Victims may be seen as difficult, unpredictable, inconsistent, unreliable, unreasonable, and judged critically because they are terrorized or traumatized… with none of the lawyers nor mediator-arbitrator understanding why.

A mediator in a mediation-arbitration, not having conducted a risk assessment, may confront or “take on” a bullying aggressor, unknowingly exposing a victim or children to retaliatory harm after the proceeding. Mediators and arbitrators may be charmed by the professionalism and reasonableness of an abuser and, unconsciously, align with him or her to the detriment of a victim and/or the children. A depressed or angry client who has risk markers that have not been identified by the mediator or arbitrator, unable to effectively manage his or her emotions, may attack the other party in the parking lot afterwards; or may come back to the mediation room with a knife or gun; may take his or her own life after a meeting with the mediator or arbitrator; or arrange for someone to stalk and beat up the mediator-arbitrator. (Recall the  case in Arizona where a party and his lawyer were murdered in the mediator’s building following a mediation.)

These are some of the reasons why mediators, arbitrators and the parties’ lawyers may want to ensure that effective risk assessment is done before a case is accepted. Otherwise, one runs the risk that, part way through an arbitration, the identification and assessment of risk is made and the arbitration must be aborted. (We routinely advise our arbitration clients that the on-going requirement of screening means there is no guarantee that an arbitration will proceed or be completed.)

Experts will tell you that it can often be difficult to accurately assess power imbalances, and the assessment may not be made correctly right away, if ever.

This is why, under the Regulation, arbitrators must consider the results of the screening not only before the process begins, but also throughout.

What are the critics saying?

There are two common arguments made against screening in family arbitration, aside from the concerns about bias and costs noted in the first post in this series.

First: judges don’t screen so why should we? The answer is easy: we are not judges. We are taking people’s money, in a private process, presumably because we can offer something better.

Second: we are lawyers, not mental health professionals. Again, the answer is easy. Screening is not mental health work; it is risk assessment, a valuable step in contemporary family dispute resolution.

It is important to acknowledge that none of us is perfect. The best screening processes provided by the most experienced screening professionals can still result in parties entering processes to which they are not suited. We do not guarantee safety or accuracy of assessment; we can only conscientiously and consistently implement the best practices we know.

Hilary Linton is a Toronto lawyer whose practice is restricted to providing mediation, arbitration, teaching and consulting services. She has used her years of experience to launch her ADR business, Riverdale Mediation, which specializes in family mediation and arbitration, teaching mediation and negotiation theory and skills, and private training and consulting for corporations, government and individuals.