After many years of uncertainty, the requirements for effective screening for power imbalances, including family violence, in family arbitration have finally become clear.
This is fortunate. Our community and also our clients will benefit from clarity on this topic.
Screening in family arbitration (and parenting coordination) is more important and meaningful than in mediation, because arbitration and PC are adjudicative processes that bind the parties.
The obligation of every arbitrator and PC, set out in Regulation 134/07, is to assess in each prospective case whether that matter and those parties are suitable candidates for diversion from the publicly-funded, accountable court system. Parties in court have access to free and knowledgeable judges, transparent and known procedures, support from Legal Aid, family court support workers, free mediation and much more. Those professionals seeking to profit from the diversion of parties out of that system have a legal and ethical duty to assess each matter, before accepting it, for suitability.
Many clients or matters should not be privately arbitrated. These include situations where one or both parties are likely to run out of money; where an OCL is required; where a party has a history of ‘ungovernability’; where an immediately enforceable injunction or restraining order might be required, or where the risk of harm to a party, child or arbitrator is such that it cannot be managed safely in a private process.
The procedure for screening is simple.
Anyone who meets with clients as a mediator must, as a standard duty-of-care best practice, screen the parties themselves. Hence, if the process is med-arb or PC, screening is done by the professional themselves in accordance with the practices long developed in the mediation world.
If the process is arbitration alone, the screening must be done by a trained and qualified third party, someone who is referred by the Arbitrator, meets with both clients, and provides a confidential report to the Arbitrator alone.
In no circumstances should parties be screened by different people. Clients should not be screened by their own lawyers, for instance. This is not only because many lawyers are not trained to screen for power imbalances; nor is it only because it is nearly impossible to effectively assess power and risk from a meeting with only one party. It is also because it is impossible for a screening process to meet the standard requirements of safety and confidentiality if the parties are screened by different people. If the Arbitrator receives two separate reports, and one of them recommends against arbitration, it will be apparent which client disclosed information identifying risk or unsuitability. This inadvertent ‘outing’ of the vulnerable party can itself present the danger of retaliatory harm.
Likewise, the Report to the Arbitrator must be given to them in strict confidence. It cannot be shared with either party or counsel, even in an Appeal. The Screening Report does not form part of the Record for Appeal. That is because, subject to the usual exceptions (s. 125 CYFSA, imminent danger to a person or court order) the screening process is always confidential, for safety reasons.
To eliminate the risk of parties seeking to set aside Arbitral Awards on the basis of poor or no screening, it is important that all Arbitrators and PC follow the same procedures.