1. What is “Screening”?
Screening is a triaging process that has been used by mediators for years to help them provide safe and balanced mediations. The mediator meets separately with each party, before agreeing to take the case, and elicits specific information that will help the mediator “diagnose” their complex relationship dynamic. The main purpose is to ascertain whether bringing the parties together in mediation could put either of them or any child at risk of physical or emotional harm. The secondary purpose is to assess whether and how the parties can best negotiate at an even table. It is important to note that screeners do not ask parties to incriminate themselves; they only ask each party what their concerns are about the other person and the process.
2. Why are Arbitration Clients Being Screened?
Formal screening has not historically been part of family arbitration, though many senior family arbitrators have always done some form of screening. That changed with the passage of a regulation under Ontario’s Arbitration Act (http://www.elaws.gov.on.ca/html/regs/english/elaws_regs_070134_e.htmAG ) which requires all clients in family arbitration to be screened for power imbalances and domestic violence before signing the Arbitration Agreement. The government introduced this requirement to protect vulnerable people (especially isolated immigrants and abused women) from being coerced into arbitration processes without being fully able to participate safely due to violence or dramatic power imbalances.
3. What is Meant by “Power Imbalances”?
In the mediation context, anything that impacts a person’s ability to negotiate is potentially a source of power or powerlessness. The most significant source of power is a person’s alternative to a negotiated agreement. The better one’s alternatives look, the more negotiation power that person will have. Other sources of power range from personality factors—– a manipulative, combative narcissist will probably have more power in mediation than a person who seeks to accommodate and avoid conflict—to financial resources, mental illness, drug or alcohol abuse, experience with negotiation, and ability to tolerate conflict. A screener’s job is to assess the parties’ respective sources of power and structure a process that will enable them both to negotiate in a safe and constructive mediation.
In the mediation context, anything that impacts a person’s ability to negotiate is potentially a source of power or powerlessness. The most significant source of power is a person’s alternative to a negotiated agreement. The better one’s alternatives look, the more negotiation power that person will have. Other sources of power range from personality factors—– a manipulative, combative narcissist will probably have more power in mediation than a person who seeks to accommodate and avoid conflict—to financial resources, mental illness, drug or alcohol abuse, experience with negotiation, and ability to tolerate conflict. A screener’s job is to assess the parties’ respective sources of power and structure a process that will enable them both to negotiate in a safe and constructive mediation.
In arbitration, the main goal is to ensure that the parties are able to fully participate in the process and that they are otherwise suitable candidates for a private adjudication process. Screening in arbitration is even more important than in mediation because of the binding nature of the outcome. For example, is the matter one that simply ought not to be arbitrated privately due to financial imbalances, with the prospect of the process becoming intolerable and unfair to a party who runs out of money? Might a power imbalance cause one party to abuse the process by being difficult, challenging the arbitrator or bringing needless motions, draining the other party of resources? Is a party a person who has been subjected to
4. What are the Key Elements of a Screening Process?
Screening is quite sophisticated. The same person must screen both parties, in order to assess the relationship dynamics. It must be confidential so that both parties are able to speak freely without fear of the consequences of disclosing violence or other important information. The process can be quick or it can be lengthy— people who are living in fear for their safety or that of their children are unlikely to be willing to talk about it easily or quickly. There are a number of useful “screening tools” in circulation, and experienced screeners adapt these for their own practices and styles. Probably the most important element of a good screening process is what is done with the information. The information is used to design the safest possible process for the parties; it is also used to determine if, when and how to terminate it. And it is of critical importance to incorporate safety planning expertise into the screening process. And all screening information must be kept strictly confidential for safety reasons, even if the process is terminated. This is a matter of training, skill and experience.
5. Why is Screening So Important?
Experienced FDR professionals know to not trust their own first impressions about people because the most dangerous people are often
Without screening, those most at risk of being coerced or harmed during a private FDR process are least likely to disclose it, leading to a range of possible harms to clients, children and third parties including the professional. Such power imbalances, when undetected or mishandled, are also more likely to cause process failure—something we see particularly often in failed “no way out” processes such as collaborative law and arbitration.
At the very least, effective screening leads to greater certainty that the process chosen will benefit the family. At the worst, it can predict and prevent the risk of murder or suicide.
6. Who Should do the Screening?
Without question, all lawyers should screen their own clients as part of their due diligence in choosing a dispute resolution process, advice and remedies for their clients.
In mediation, mediation-arbitration and parenting coordination, the person who is acting as mediator/facilitator should screen both clients prior to signing the mediation or med-arb agreement. This is to ensure that the person responsible the negotiation process understands the power dynamics sufficiently to competently decide whether the case is appropriate for private negotiation of the kind contemplated, how to best structure it, or whether and how to safely terminate it. Competent mediators must understand the principles of safety planning and safe termination of processes and this requires them to meet each client in confidence, before starting the mediation, to screen them both. All mediators who are certified by one of Ontario’s certifying organizations are bound by their professional standards to conduct a screening process themselves.
In arbitration, because arbitrators are prohibited from conducting their own screening process, the only acceptable practice is for the arbitrator to refer both clients to a third party screening professional with whom the arbitrator is comfortable. The third party should enter into a screening contract with the clients, meet each separately and confidentially and prepare a report on the power balances and risk assessment to the arbitrator, alone, in confidence. The report should contain enough information for the arbitrator to comply with their duty to assess risk and power balance sufficiently to determine if arbitration is the right process for this family, if so, how to structure it safety and effectively and if not, to refer the parties to a more appropriate process including any required safety planning.
We are well aware of many arbitrations (in reported and unreported cases) that have failed because of improper screening. As arbitrators are bound by a duty to ‘do no harm’, and also a positive duty to ensure proper screening is conducted, it is incumbent on family arbitrators to take this duty seriously and comply with best practices. Even though the Ministry of the Attorney General website indicates that it might be acceptable for arbitrators to rely on each party’s counsel to conduct the screening, this option is fraught with risk and is not recommended. (For a full discussion of these risks, see Stephen Grant and Jenna Preston, A Guide to Family Arbitration in Ontario, 2018, p. 70-78.)
7. What Training Should Screeners Have?
Standard best practices require all those doing screening to have at least 21 hours of training in Identifying, Assessing and Managing Risk arising from power imbalances and domestic violence.
The website of the Attorney General of Ontario requires at least 14 hours training as an absolute minimum.
8. What are the Risks Associated with Screening?
The most common risk is that it will not be properly done and that risk will be
The next most common risk is that a party or counsel will seek to abuse the process and try to obtain production of confidential screening notes and intake forms. (See commentary on Benson v Kitt here.)
It is therefore important that all those working in the FDR field be well trained about the importance of screening, the elements of the process and commit to provide and protect the process with vigilance and care for clients.
9. What Should the “Report” Of The Screening Say?
There is no pro forma report; however, many are using a form that recommends for or against arbitration and includes any process recommendations the screener may have. See “Consent to Third Party Screening” (https://www.riverdalemediation.com/wp-content/uploads/2017/08/Consent-to-Third-Party-Screening-%C2%A9-RML-2017.pdf), and “Confidential Screening Report for Family Arbitration” (https://www.riverdalemediation.com/wp-content/uploads/2017/08/Confidential-Screening-Report-for-Family-Arbitration-%C2%A9-RML-2017.pdf) for a comprehensive example.
10. Can The Results of a Mediation Screening Be Used for a Subsequent Arbitration?
Clients will sometimes attend mediation, fail to reach an agreement, and agree to arbitration later with another person. It is inconvenient to ask them to submit to two different screening processes. It is possible to agree, at the time of the mediation, that the mediator will prepare a report on the results of the screening for the purpose of a later arbitration should that be necessary. Absent such an agreement at the time of the mediation, however, a mediator’s confidential screening notes should not be used for any other purpose. Also, a screening done for
