I just finished teaching a two day course called “Screening for Power Imbalances, Including Domestic Violence, in Mediation and Arbitration.”
What is this course and why do people take it?
Family mediation training has always included this course. Some of my renowned colleagues include Des Ellis at York University; Dr. Barbara Landau; and Antoinette Clarke. I took the training myself first from Des Ellis and then again at the Mediation Centre of Simcoe County in Barrie, where Lisa Wice and Claudette Reimer have been teaching it for many years.
So, the subject is hardly a new one to family mediators.
Anyone working in the family law field knows that there are all kinds of personal relationship dynamics that could lead to significant differences in their ability to negotiate a fair settlement. It could be simply the intensity of the emotions; that one person is not ready because he or she did not ‘see it coming’; or that one feels betrayed or humiliated.
Or it could be that one person is a difficult person to deal with because of personality, drug or alcohol use, or mental illness.
Or it could be that the relationship was based on one person maintaining power and control over the other person, that probably included violence against the partner and/or the children.
All of these factors make family mediation challenging, and explain why it is critical for mediators in this field to “screen” the parties first to make sure that mediation will be a useful and safe process for everyone: parties, children, mediator.
And now, because of relatively recent amendments to Ontario’s Arbitration Act, all family arbitrators must take this training now too. The notion behind the requirement is that Arbitration, unlike the courts, is a private process. It is therefore important to ensure that the parties who are choosing to opt out of the public process and into a private one are doing it voluntarily, and that it will be a safe and useful process for them.
Because virtually anyone can be an arbitrator, it is good policy to require all family arbitrators to know about power imbalances, and about how people who are in relationships based on power and control might behave. Because mediation and arbitration may not be the safest processes for them or their children, especially if the mediator or arbitrator does not understand the dynamics at work.
The requirement that arbitrators take the training has not been universally applauded, especially by some senior members of the family law bar. Some feel that because the arbitrator is just hearing evidence and making a decision, he or she does not need to know about or understand power imbalances.
I could not disagree with them more strongly. Many arbitrations fail because they were not properly ‘screened’. If they had been, they probably would have been screened ‘out’ of private arbitration. People who are not good candidates for mediation are probably not good candidates for arbitration either and they would be better served by going to court.
But the topic remains controversial and your thoughts are welcome.
