Chief Justice Beverly McLaghlin opened the 2014 National Family Law Conference (after receiving an ear-shattering standing ovation) exhorting lawyers to provide more innovative services to separating couples given the crisis in access to justice. She framed her comments around the importance of maintaining public confidence in the rule of law, which is undermined by restricted on access to justice.
Chief Justice McLaghlin spoke powerfully about the importance of providing those experiencing separation information at the very start about the law and the many processes available to them. This work is currently being done well in Ontario by the Information Referral Coordinators and onsite mediators in all family courts.
Jerry McHale and George Thomson from the Family Justice Working Group next spoke, highlighting the key problems that need solving, including the structural problems inherent in an adversarial system of dispute resolution, the massive increase in child protection litigation, and the scarce government resources available for family law. The group has made a wide range of innovative recommendations for changes to law school curricula, increased resources for triage, unified family courts and specialized judges.
However the Working Group is offside in embracing “mandatory consensual dispute resolution” (an oxymoron in itself). There is little (if any) research supporting mandatory family dispute resolution. Though voluntary mediation is under-utilized, there are better ways to incentivize its use. Settlement and satisfaction rates will decline if parties are forced to negotiate before they are ready or where it may not be safe. Anecdotal information from Australia, where mediation is mandatory (there is no data we know of) confirms lower settlement rates since the process became mandatory. Mandatory mediation is costly and it is unlikely that a credible cost-benefit analysis would support it.
Further, forcing parties to negotiate without proper back up for addressing power imbalances— be it from violence, mental illness, addition, or other cause—–is dangerous to parties and children. The drafters have recommended an exception for victims of violence— but this is also the wrong approach. To create a specific exemption forces victims to either “out” the violence without safety measures in place, putting themselves and their children at risk of retaliatory harm— or to stay silent and participate in a possibly highly coercive settlement discussion. Extensive research shows that victims of coercion and control will not disclose the violence if there is any risk that doing so will expose them or their children to greater harm.
A better option is to mandate early, individual, confidential intake meetings, conducted by skilled mediators who screen for all forms of power imbalance and have discretion to proceed with voluntary mediation or to screen the case out as “inappropriate” for any reason.
Data from Ontario’s court connected mediation programs demonstrate that effective intake processes prepare clients well for voluntary mediation and secure their buy-in— resulting in higher settlement and compliance rates. As well, mediation processes with effective screening and safety planning have been shown to enhance safety, resulting in fewer subsequent assaults than either litigation or lawyer-directed negotiation, according to research by Prof. Desmond Ellis at York University.
The Family Justice Working Group has not provided any research to support this recommendation. There were no mediator members of the group nor were advocates for violence involved from what we can tell. The recommendation should be for to mandatory intake —a much sounder, safer and more successful way of encouraging the use of mediation.
Image credit: Emmanuel Huybrechts, https://creativecommons.org/licenses/by-sa/2.0/legalcode
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