Domestic Abuse Screening: Only a Concern for Mediators?

Felicity Shedden is a complete dispute resolution practitioner: arbitrator, mediator and collaborative lawyer.  She is also a proponent of ‘med-arb’.  As such she is well placed to discuss in this guest blog the place of domestic abuse screening in the DR process and poses the question: should it also be a consideration for family law arbitrators dealing with unrepresented parties.

There is a fierce debate raging on the other side of the Atlantic. I’m not talking about Obama-care, or Middle Easter foreign policy, but the world of the Toronto bar, and specifically, amongst the small group of DR practitioners who offer ‘med-arb’, or mediation-arbitration, to separating or divorcing couples.

For the uninitiated, med-arb is a process combining, some would say, the advantages of the two DR solutions, so as to help families to reach a self-determined outcome, whilst offering the certainty of a final decision if no agreement can be reached. The source of controversy in Toronto arises, not so much from the hybridisation of the two processes, but from the practicalities of screening for domestic abuse and risk in med-arb, and stand-alone arbitrations.

Unlike here in England and Wales, the Ontario Arbitration Act 1991 specifies that an arbitrator must ensure that the parties have been screened for domestic abuse before commencing an arbitration, and must further promise to consider the results of the screening process throughout the arbitration. In reality, however, it is common practice for the arbitrator to rely upon statements from the parties’ lawyers, confirming that they have carried out the necessary screening and that they believe it to be safe for the parties to enter into arbitration, or med-arb. Presumably, (and, in my observation, in fact) these arbitrators are not interested in providing for a self-representing, or litigant in person, market.

In theory, perhaps this certificate from the lawyer is adequate, if all lawyers are sufficiently trained and aware to carry out effective screening. But there is a real danger that this screening process is carried out, if it’s completed at all, as a ‘tickbox’ exercise, perhaps by junior staff, and perhaps without genuine consideration of the complexities of the situation. There is no requirement for family lawyers to receive any training at all on the identifying, assessing and managing of the risks associated with certain behaviours and/or forms of family violence. Under the law, it is the responsibility of the arbitrator to ensure the safety of all those engaged in the process, and, that crucial phrase, to do no harm. Under Ontario law, mediators have no specific duty to screen at all, although those who have voluntarily chosen to become accredited do have an ethical duty to screen. Further, recent case law has begun to fill the legislative gaps and create an emerging duty for lawyers, mediators and arbitrators to ensure effective screening is done. See Wainwright v Wainwright (2012 ONSC 2686) and Linton, Hilary (Canadian Arbitration and Mediation Journal Vol.23, No1).

This should be set in the context of the dramatic escalation of risk of murder, and murder-suicide during divorce and relationship breakdown. Only this month, a man was found guilty of burning his ex-wife to death in Stirling. The victim told paramedics before she died that her ex-husband had carried out the attack because she had divorced him. In one recent case, a woman was stabbed to death in the lift by her husband as she left a mediation session. In another, a woman and her lawyer were murdered at a fast food restaurant half way through a final hearing on finances. Strikingly, although there are some common features and predictors of divorce-related homicide, in many cases, there is no previous history of domestic violence. A superficial glance over the issue simply would not show up the risk that a more in-depth screening process could well identify.

It is against this background that mediator-arbitrator and trainer Hilary Linton is fanatical about the need to raise standards in screening within dispute resolution. Hilary is convinced that the only way to do her best to protect both the parties and the professionals involved, is for the mediator-arbitrator to meet with each client separately before starting any DR process and to explore thoroughly, and in confidence, any history of controlling or aggressive behaviour.

Herein lies the bone of contention. How, say her critics, can you have private, confidential meetings between an arbitrator and the prospective parties? Surely this leaves you vulnerable to allegations of abuse of process? They argue vigorously that the arbitrator has to be seen as being neutral and that any private meetings will undermine the integrity of the award.

Hilary’s response is to say, how can you not? Safety, she says, trumps everything else in private mediation-arbitration. Leaving aside the extreme scenarios mentioned above, there is a real danger of unfairness within the med-arb process if the mediator-arbitrator is not able to identify the myriad forms of power imbalance that can arise as a result of an abusive relationship. What about the risk of duress, and a party being pressured into agreeing to the process in the first place? What about the potential unfairness of one party feeling less able to put their case forward within an arbitration because of intimidation? More subtly, what about the chance that an abuser may well be more charismatic, more practiced at aligning themselves with professionals, more able to engage with the arbitrator? It is an unpalatable fact that survivors of domestic abuse can often present in a less than sympathetic manner, perhaps inviting findings on credibility against them. (see for instance Docherty v Catherwood 2013 ONSC 5220, another recent Ontario decision. )

The med-arb process, of course, intensifies the level of debate around this area. In med-arb, the practitioner hears both parties’ proposals and interests before, at some point, switching from mediator to arbitrator and becoming a tribunal. The dual role of the mediator-arbitrator amplifies the risk if things go wrong and gives greater opportunity for an abusing party to exploit power imbalances and unconscious aligning within the process.

In this jurisdiction, we don’t yet have an established med-arb process, although I would argue that this cannot be far away. In the meantime, however, it is my concern that the subject of screening in stand-alone arbitration still raises many questions for us here in England and Wales. The Arbitration Act is entirely silent on the issue of domestic abuse screening, perhaps because it was drafted with commercial, rather than family, disputes in mind. Similarly, the IFLA rules say nothing about the duty of the arbitrator to ensure the safety of the parties within the process.

A reason for this which is often advanced is that there is no screening in the court room; anyone can issue an application to court and no-one expects the judge to meet separately with the parties before a hearing. If arbitration is essentially private judging, they say, why should this be any different?

In my view, the two processes, arbitration and litigation, are a world apart. When you’re sitting as a judge, you have a little red button under your desk. If you press that button, a troupe of burley bouncers should burst into the courtroom. In my office in Woburn, I have no red button, and the only cavalry I can expect are my secretary or my trainee, neither of whom would stand much of a chance against Mike Tyson. I have no airport style security scanner at my front door, checking for hidden weapons as clients arrive. If the unimaginable were to happen at court, no-one would sue the judge, who neither suggested that the parties should commence litigation nor invited them to the hearing, nor took responsibility for the waiting room facilities. Can we confidently say the same as arbitrators if we encourage couples to arbitrate a dispute, arrange a meeting at our offices or chambers, and give no thought to their safety as they arrive, wait for and leave the meeting? More fundamentally, will we be able to sleep at night if it’s our office that someone is leaving when they’re assaulted?

I’m conscious that these anxieties may be considered over dramatic, perhaps, sensationalist, over the top. I would say two things in response to that. Firstly, the Office for National Statistics tells us that, in 2012-2013, 45% of homicides of women in England and Wales were perpetrated by partners or ex-partners, as against 4% of male victims. Secondly, and much more personally – a few years ago, a former colleague of mine saw a new client. A nice woman, middle class, middle England, no mention of domestic violence. My colleague sent the standard first letter, saying that we were instructed to petition for divorce. The husband received the letter and on the same day, he stabbed our client to death in front of their child. These things do happen. Here. In this jurisdiction. In ‘normal’ families. And we ignore this at our peril.