Committee on Domestic Violence Screening Policy
On June 10, 2016, members of FDRIO’s Arbitration, Med-Arb, PC and Mediation Sections were invited to participate in a consensus building exercise to develop a policy on Screening for DV and Power Imbalance that protects both the families we serve and the professionals who are offering a valued service. We thank the approximately 20 professionals from diverse professional backgrounds, as well as a few clients, who attended and shared their experiences and wisdom. Thanks also to Neil Maisel who hosted us in the scenic Crowe Soberman Boardroom.
We started the day with an excellent overview by Penny Krowitz, Executive Director of Act to End Violence Against Women, of the types of concerns faced by victims/survivors of violence – both women and men – from all cultural and socio-economic backgrounds.
Hilary Linton, Lorne Wolfson and Barbara Landau helped to establish a clear focus for the dialogue that followed; namely
a. Should there be a requirement that ONLY the Arbitrator or Med-Arbitrator conduct the screening separately with both parties? or
b. Should there be the option of permitting the separate screening of both parties to be conducted by the Arbitrator or Med-Arbitrator OR a (competent) 3rd party designated by the Arbitrator or Med-Arbitrator?
That is: screening by each lawyer of his/her client would no longer be adequate.
If b. Is permitted, the question becomes: What information may be conveyed to the Arbitrator or Med-Arbitrator by the 3rd party screener? What protections need to be in place (in the legislation or our policies or in Retainer Contracts) to ensure that professionals are not subject to a s. 19 allegation of bias or other complaint based on the fact they had information about Screening for Safety, Competence or Voluntariness?
All participants were actively engaged in a consensus building process, known as a Samoan Circle, as we invited everyone present to share their strongly held views on the issues. We were ably assisted by Penny Krowitz and Mary Jo Franchi-Rothecker who flip charted the many viewpoints expressed. Then Rick Shields summarized the major points that allowed the group to reach consensus on the FDRIO Screening policy for Family Arbitration, Med-Arb and PC going forward. Family Mediators have a requirement that every mediator must screen their own clients separately prior to mediation, and this was not changed.
While the majority believes that the best practice is for the Arbitrator, Med-Arbitrator or PC to do their own separate screening (as is required in B.C.), it was recognized that this represents a new approach in Ontario that still raises concerns about challenges to the arbitrator’s neutrality. In addition, many arbitrators are concerned about their lack of skill and comfort acting as screener. This is a serious issue and if not addressed competently could leave clients at risk. Finally, the field benefits from the participation of highly experienced and skilled arbitrators, who are unlikely to change their practice at this point in their successful careers. With the new proviso that the same person must separately screen both clients (therefore screening by each lawyer is not adequate), and that the Report to the arbitrator can provide more information about safety concerns and process changes, clients are better protected than in the past. We agreed that any 3rd party screener must have met the requirements for DV and Power Imbalance Screening Training.
FDRIO will be announcing detailed Reports about requirements for Certification of Family Arbitrators and Med-Arbitrators and PC’s including Screening Requirements in the very near future.