Screening Before Mediation, Arbitration and Parenting Coordination - A Brief Overview

When a relationship breaks down, clients can choose the process they wish to use in order to discuss and settle the legal issues that flow from the separation, including parenting rights and responsibilities, child support, spousal support and the division of their property. They may decide to:

  1. negotiate on their own;

  2. consult with lawyers for advice;

  3. retain lawyers to negotiate on their behalf;

  4. participate in mediation either on their own or with their lawyers at the table;

  5. participate in a collaborative family law process;

  6. hire an arbitrator to hear their evidence and decide any issue(s) that they are unable to resolve through negotiations;

  7. go to court; and / or

  8. engage the services of a parenting coordinator to work with them over an extended period of time to interpret and implement their parenting plan and resolve ongoing disputes about parenting issues.

Being screened for domestic violence, power imbalances and capacity to participate in process is an important component of mediation, arbitration and parenting coordination. Screening is crucial because it allows the professionals who facilitate discussions between separated parties in mediation or who make decisions about each party’s legal rights and obligations in arbitration and parenting coordination to ensure that clients who participate in these private dispute resolution processes do so voluntarily (not under duress) and that they have the emotional and cognitive capacity to make informed decisions about how specific legal issues are resolved. Screening is also a mechanism that is designed to ensure that clients are emotionally and physically safe before, during and after clients participate in private dispute resolution processes. No formal screening is required for court proceedings to take place.

Before mediation, arbitration or parenting coordination may begin, clients are screened either by the mediator, arbitrator or parenting coordinator or by a third party who prepares a report for the professional in charge of the process. The reports contain recommendations about whether or not the process should proceed at all and if it does, the safeguards that should be in place to ensure that the process is safe, appropriate and fair.

Clients are screened individually and confidentially. Mediators, arbitrators and parenting coordinators use a combination of formal screening tools (questionnaires), their own questions and observations to gather a great deal of information about a variety of factors that may influence each client’s ability to voluntarily participate in the process, make informed decisions about the issues that are being addressed and be safe. The breadth of factors which may be canvassed during screening is beyond the scope of this blog, however, generally speaking, screening will address:

  1. historical, episodic or ongoing intimate partner violence of any type and severity, including: physical, sexual or psychological abuse, violence, threats and intimidation;

  2. financial abuse

  3. power imbalances stemming from historical or current events in the parties’ relationship, which may have conditioned one party to behave or respond to the other’s behaviour in a certain way that would prevent that person from being able to assert their own rights, opinions and views about outcome in a process or put in their own case

  4. power imbalances which result from a denial of access to information that is required to make informed decisions about children, finances, support rights and / or property

  5. an exertion of control by one party over the other’s access to physical independence, emotional support from family, friends, colleagues, financial resources, medical treatment

  6. personal challenges which may impact the ability to express oneself clearly in writing or verbally or to process information, as a result of lack of education, unavailable interpretation or translation services, illiteracy, learning disabilities, mental illness, physical illness or a brain injury

  7. power imbalances stemming from serious illness such as cancer where a client may feel vulnerable and pressured to settle disputes before undergoing chemotherapy, radiation, surgery or because of imminent death

  8. incapacity arising from debilitating illnesses with declining capacity or escalating symptoms, such as Parkinson’s, Alzheimer’s dementia, multiple sclerosis or ALS

  9. power imbalances which are created or aggravated by mental illness, stress or anxiety

  10. power imbalances that are created from current parenting, support or property arrangements which may leave clients vulnerable to accepting less than their entitlements

Screening can be complicated. It involves assessing both capacity to participate in mediation, arbitration and parenting coordination as well as the emotional and physical risk to which clients may be exposed before, during and after they participate in a private dispute resolution process. In 2007, the Ontario Government amended the Arbitration Act, 1991. The amendments require that arbitrators are trained to do screening and that clients are screened in a specific way before certain private dispute resolution processes take place. Arbitration awards may be set aside if screening is either not done at all or is done improperly.

It’s important for professionals who work as mediators, arbitrators and parenting coordinators comply with screening requirements set by the Government of Ontario. It is equally important for clients to understand why they are being screened, the circumstances in which they may be screened out of a particular process and what can happen either if the screening is improper or not done at all.

The following is a summary of Ontario law and the professional standards for mediators, arbitrators and parenting coordinators set by the Ontario Association for Family Mediation (OAFM) and the Family Dispute Resolution Institute of Ontario (FDRIO) relating to the screening requirements for mediation, mediation-arbitration, family arbitration, secondary arbitration and parenting coordination.

The provisions of the Arbitration Act, 1991, Ontario Regulation 134/07, the Ontario Association for Family Mediation’s Policy on Abuse and the Family Dispute Resolution Institute of Ontario’s Mediation Screening Guidelines, Family Arbitration Screening Guidelines and Standards of Practice for Parenting Coordination set out when screening may be done by the professional who is running the private dispute resolution process and when it must be done by a third party. The Regulation also prescribes when clients must receive independent legal advice before a private dispute resolution process begins. The summary also references where the legal and professional requirements may be found.

MEDIATION

Does each party need to be screened separately by a third party before the mediation process begins?

OAFM Policy on Abuse: NO

FDRIO Mediation Screening Guidelines: NO

Best Practices: NOT REQUIRED

Must the mediator personally screen each party separately before the mediation process begins?

OAFM Policy on Abuse: YES

FDRIO Mediation Screening Guidelines : YES

Best Practices: YES

Must the parties receive independent legal advice before the mediation process begins?

Best Practices: NOT MANDATORY BUT MAY BE ADVISABLE IN SOME SITUATIONS

MEDIATION-ARBITRATION

Must each party be screened separately by a third party before the mediation-arbitration process begins?

Ontario Regulation 134 / 07 - Subsection 2(1)(b): NO

FDRIO Arbitration Screening Guidelines: OPTIONAL

Best Practices: NOT MANDATORY BUT MAY BE ADVISABLE IN SOME SITUATIONS

Does the mediator-arbitrator need to personally screen the parties before the mediation-arbitration process begins?

OAFM Policy on Abuse: YES

FDRIO Arbitration Screening Guidelines: YES

Best Practices YES

Do the parties require independent legal advice before the mediation-arbitration process begins?

Ontario Regulation 134 / 07 - Subsection 2(1)(b): YES

FAMILY ARBITRATION

Does each party need to be screened separately by a third party before the family arbitration process begins?

Ontario Regulation 134 / 07 - Subsection 2(3)(b): YES

FDRIO Standards of Practice: YES

Does the arbitrator need to personally screen the parties before the family arbitration process begins?

Ontario Regulation 134 / 07 - Subsection 2(3)(b): YES

FDRIO Standards of Practice: YES

Best Practices: YES

Do the parties require independent legal advice before the family arbitration begins?

Ontario Regulation 134 / 07 - Subsection 2(3)(b): YES

SECONDARY ARBITRATION

Does each party need to be screened separately by a third party before the secondary arbitration process begins?

Ontario Regulation 134 / 07 - Subsection 2(2)(b): NO

FDRIO Standards of Practice: OPTIONAL

Best Practices: NOT MANDATORY BUT MAY SOMETIMES BE ADVISABLE

Does the arbitrator need to personally screen the parties before the secondary arbitration process begins?

Ontario Regulation 134 / 07 - Subsection 2(2)(b): YES

FDRIO Standards of Practice: YES

Best Practices: YES

Do the parties require independent legal advice before the secondary arbitration begins?

Section 59.7 of the Family Law Act: NO

Best Practices: NOT MANDATORY BUT MAY BE ADVISABLE IN SOME SITUATIONS

PARENTING COORDINATION

Does each party need to be screened separately by a third party before the parenting coordination process begins?

FDRIO Standards of Practice: OPTIONAL

Ontario Regulation 134 / 07 - Subsection 2(2)(b): NO

Best Practices: NOT MANDATORY BUT MAY BE ADVISABLE IN SOME SITUATIONS

Does the parenting coordinator need to personally screen the parties before the parenting coordination process begins?

Ontario Regulation 134 / 07 - Subsection 2(2)(b): YES

FDRIO Standards of Practice for Parenting Coordination: YES

Best Practices: YES

Do the parties require independent legal advice before the parenting coordination process begins?

Section 59.7 of the Family Law Act: NO

Best Practices: NOT MANDATORY BUT IS OFTEN ADVISABLE

* For more information about screening, please see the Ministry of the Attorney General for Ontario’s website (Family Arbitrations Section) , the OAFM Policy on Abuse and FDRIO’s Family Mediation Screening Guidelines, Family Arbitration Screening Guidelines and Standards of Practice for Parenting Coordination

Kathryn d'ArtoisComment