When I took my mediation training back in 1996, (hate dating myself), a large part of the course was devoted to screening for intimate partner violence and power imbalances although the terminology was a bit different back then. Both of my trainers eventually became judges and both had studied mediation themselves at United States universities. Shortly after my training, I was privileged to be able to work at The Mediation Centre here in Barrie where once again the methodology of screening was emphasized. Each year, in order to maintain status as a mediator at the Centre, additional ongoing training in this area is required. We all know that, as arbitrators, we must also attend a five hour course each year on the subject which has been translated into 10 hours every two years. Attendance at this course is required to maintain your status as a family arbitrator in Ontario. In addition to that, not known widely, arbitrators must also take an extended training program in this field every five years.

There is little doubt among the profession and the trainers that the best method we have to date for proper screening is to meet each of the parties to the mediation individually and confidentially prior to any joint session and make an assessment as to whether or not the mediation process will be safe and right for each party. Screening does not end there. We have to be vigilant in our observations throughout the mediation to ensure that the process continues to be safe. We have been taught how to end the process as safely as possible if it becomes apparent during the sessions that a party is at risk.

As we know, under the Regulations governing family arbitrations, if we are conducting a mediation/arbitration, we are empowered to conduct our own screening. Only if you are conducting a family arbitration by itself must you send the parties out for independent screening. In my practice, I very much prefer to do my own screening and make it clear to the parties’ counsel before entering into the process that it would be my intention to arrange private and confidential meetings with each of their clients prior to engaging in any joint session. From my perspective, this satisfies my ethical obligation as a mediator. Fortunately, most cases settle in the mediation phase.

There are no doubt many lawyers who would frown on the potential arbitrator having a confidential private meeting with each of the parties prior to conducting an arbitration.  There is no record of that meeting and there are many who advocate against this approach.

Many years ago, when I did trial work on a regular basis, I had a parenting case before a judge whom I will respectfully not name. However, this particular judge is renowned for his dedication to family law. He was also one of the most hard-working judges with a very strong desire to help people settle their cases without trials. My client was the respondent father opposing a claim by the applicant mother who was seeking a change in a parenting arrangement which had existed for several years under which my client was the primary parent who had very admirably cared for the children on a day-to-day basis. The applicant mother had by her own choice not seen the children more often than once every two months primarily because she lived in Hamilton several hours away where she was employed at a gentlemen’s club. She thought that since she had ceased her employment in that field, she ought now to have the children live with her in Hamilton and pushed the matter through to a trial. At the end of her evidence at the trial, I was contemplating a motion to dismiss as her evidence clearly did not warrant a change in the parenting plan. However, our judge had other ideas. He hauled both of us lawyers back into his chambers. He pleaded with both of us to let him in effect become a mediator and see if he could settle this case for our clients. Both of us lawyers were reluctant to let him do this because, if he was unsuccessful, we would have wasted trial time as we assumed that he would no longer be able to conduct the case. He convinced me at least that he would be able to remain neutral if we both wanted him to continue the trial if he was unsuccessful. From all of my previous dealings with him I had no doubt that he would be able to forget everything he heard from parties in mediation and carry on as the trial judge. The other lawyer understandably had reservations and so would not consent. Our judge then proposed that, if he was unsuccessful in settling the case, a new judge would be appointed to finish the case and the transcript of the applicant’s evidence would stand as her evidence. Our client would be able to then lead his evidence in person. As strange as it may sound today, both counsel agreed to his proposal. Needless to say, he was successful and the trial ended with a consent order.

I share this story because I do believe, after conducting mediations and arbitrations where the mediation has been unsuccessful, it is possible to rely only on the evidence you hear in the arbitration to make a decision.  If the matter does proceed to arbitration, for example, I destroy any notes that I may have made during the mediation phase. The arbitration is also usually set at least several weeks down the road from the mediation, if not months, so, quite frankly, I often forget what I heard in the mediation as well. (I am getting old).

There are at four reasons why I want to meet the parties individually and confidentially prior to either mediation or mediation/arbitration.

First, in my experience, the parties really appreciate the opportunity to tell their story in their own words. Their advocates of course translate their story into legal terminology which sometimes they do not always understand. They are able to share with me their goals for the mediation and more importantly, the emotional struggles they have encountered as a result of the separation. I am able to establish a rapport with them and become empathetic while I listen which helps me in the mediation phase. Empathy of course does not mean agreement with their position – just respect and attention.

Secondly, I fulfil my obligation to properly conduct the screening. I ask many open-ended questions to elicit the information with respect to power imbalances and IPV. I do this most often later on in the individual session when the parties are more comfortable with me and more likely to open up. We know that people who have experienced coercive controlling and violent relationships are often very reluctant to share their experiences easily. Often, they begin sharing only after they have confidence in the confidentiality of the process.

Thirdly, I explain how the mediation can work and give them the options such as caucusing or keeping everyone together or, more recently, in person or by videoconferencing. I ensure that they understand that this process is designed to help them come to a decision which they can accept as the basis for moving on from what they have been going through. In this discussion, in other words, I try to empower them and help them understand that an agreements can be reached which does not necessarily “follow the book”. They can be creative in finding their own solutions. At the same time, I make sure that they understand that I cannot give legal advice or make any recommendations for them, that they must rely on their lawyers for that. I do explained to them that I will share my experiences with them and offer some ideas which might work for them but they are ultimately the ones who must make the final decision. When I am conducting a mediation arbitration, I generally stay as far away from an evaluative approach to the mediation phase as I can and only do that if both parties are comfortable with that approach. If I am asked, I of course remind them that I am providing an opinion on limited information and my opinion may well change after an arbitration hearing in appropriate evidence is presented.

Finally, at a personal level, I get to hear both sides of the story and I begin to understand the personalities involved in the conflict. Often, after hearing both sides, the reasons for the conflict become very apparent. Those who have conducted these “individuals” of one party have shared with me their experience of getting a mental image of the other party which turns out to be completely inaccurate when you actually meet the other party in their individual session. Meeting both individually and letting them speak openly very much assists me in planning for the mediation phase and also helps me a great deal to enter the mediation with a more neutral approach. In other words, it often helps me help the parties avoid an arbitration.

If you have never tried this in your practice, I urge you to give it a try. You might find it rewarding.