BarTalk February 2001
Volume 13, Number 1

Including civil matters and appropriate family matters

by Barbara M Young

On March 11, 2000 the CBABC Provincial Council passed a resolution supporting the expansion of the Notice to Mediate to civil matters and “appropriate family matters”. This article summarizes the Equality Committee’s investigation into the meaning of “appropriate family matters” and recommendations for safeguards which should be in place before the Notice to Mediate process is expanded to include family matters.

The Notice to Mediate can be a very useful tool to compel a party to attend mediation rather than being forced to respond to expensive litigation imposed by that party. In the area of family law, however, there is often an extreme imbalance of power between the parties, which could be used to the great disadvantage of the party with little power.

Mediation should not take place if the power imbalance between the parties is severe enough to interfere with the parties’ ability to communicate freely in the mediation and to effectively advocate for themselves. Power imbalance can be severe in abusive relationships. Intimidation, harassment and stalking can take place outside the mediation, which the mediator may not be made aware of. Intimidation can take place in the mediation which the mediator may not notice because of the subtle verbal or physical cues which may have meanings shared only by the two parties but not obvious to those outside their relationship.

Language barriers and cultural differences can create power imbalances, which may be difficult for a mediator who is not a member of the parties’ culture to detect. Disability can also create serious power imbalances.

The following safeguards are recommended before expanding the Notice to Mediate to family matters to help address some of these concerns:

1. Exemption from Mediation
If there is to be a mechanism to compel family litigants into mediation, then there must be a strong accompanying right to be exempted from the process in the face of domestic violence or other grounds for insurmountable power imbalance.

The exemption clause should include a subjective test and should be liberally interpreted. Participants should be given flexibility and discretion to determine the appropriateness of mediation in family matters and to decide whether abuse has reached a level that would compromise the process. This maintains an element of voluntariness, which is imperative in any mandatory mediation model which includes family law.

In some cultures it would be impossible for a woman to mediate with her spouse because of the culturally imposed power imbalance. This should be seen as a legitimate reason for opting out of mediation.

2. Adequate Screening of Participants
Screening for domestic abuse should be a mandatory segment of the Notice to Mediate regulation. Screening for abuse is a complicated issue because victims do not always self-identify. They may believe that their experiences are normal because they come from a culture that accepts violence against women. They may fear reprisal or they may be embarrassed and ashamed to report domestic violence.

Several methods of screening are canvassed in the article Mediation in the Shadow of Abuse by Deborah Lynn Zutter, The Advocate, vol. 57 Part 6 November 1999 p 867. Screening should be an ongoing process using several screening tools including counsel interviews, questionnaires and in-person pre-mediation interviews between mediators and participants.

Screening for mental health issues and grief issues should also take place as these issues may interfere with the person’s ability to actively participate in mediation.

3. Mediator Education
Regulated professional standards should be in place for mediators participating in a Notice to Mediate process because of the lack of voluntariness of the process. Family Mediators participating in this process should be educated in abuse issues both for the purpose of screening out inappropriate mediations and for dealing with power imbalance in mediation. Certification should be a requirement. Ongoing training regarding abuse issues after certification should be mandatory. Mediator training should emphasize the safety of women and children and an understanding of systemic gender discrimination and power imbalance.

4. Consultation with Stakeholders
The Dispute Resolution office has committed to conduct a full consultation with the stakeholders before the Notice to Mediate is expanded to include family matters. This consultation should include:

• Women’s groups dealing with abuse issues;

• Disabled women’s network (DAWN);

• Multi cultural organizations;

• Aboriginal groups;

• Consultation with the Provincial Court for feedback from its evaluation of Rule 5 of the Provincial Court Rules which requires a mandatory conference with a Family Justice Counselor and which offers mediation to all parties;

• Legal Services Society; and

• Mediation certification societies such as Family Mediations Canada and the BC Roster Society.

5. Legal Representation for Parties and Adequate Legal Aid Funding
Legal representation should be available before mediation to advise participants of their legal rights and options. This is information that the mediator can’t provide in a neutral fashion. In some cases, legal counsel should accompany participants in mediation sessions. If mediation is to occur between parties who have been involved in abusive relationships, it should only proceed with a mediator who is well trained in abuse issues and with counsel present to represent the victim.

Legal aid funding for independent legal advice should be made available for participants who meet the financial eligibility test. Additional funding should be made available for members of marginalized groups to ensure that counsel are available to attend the mediation with them or to consult with them during the mediation.

6. Interpretive Resources and Support Workers
It is imperative that people compelled to mediate have appropriate supports to make the process accessible, understandable, safe and effective for them. Professional interpreters or signers should be made available either privately or through legal aid funding. Mediators need to be trained to deal with cultural diversity and need to have access to support people including cultural interpreters in the community.

People with disabilities may or may not be suitable candidates for mediation in family matters. Again adequate screening, mediator education, and access to interpreters or support people can ensure that mediation is not inappropriately forced on people with disabilities. Mediators need to be trained to understand how the disability may impact a person’s ability to participate and how it impacts their legal needs.

Aboriginal people may have little faith in the justice system and little understanding of how it works. They may not establish a rapport with the mediator unless support workers are present to explain and endorse the process.

In conclusion, because of the number of obstacles and difficulties accompanying family mediation, some argue that there should be no mandatory mediation in any family matter. However, CBABC Provincial Council passed a resolution supporting an expansion of the Notice to Mediate to civil and “appropriate family matters”, reflecting, in the Equality Committee’s view, support by the Bar for a Notice to Meditate in family matters only when and if adequate safeguards are in place.

Barbara Young is a member of the CBABC’s Equality Commitee and Co-Chair of the ADR-Okanagan Section. She practises family law and family mediation at Kendall, Penty & Company in Kelowna.

This article is provided courtesy of the CBABC Equality Committee, which is committed to ensuring that CBABC members are informed about areas of the law and practice which have an impact on equality and diversity issues. Compelling a party to participate in a family mediation can create an unsafe or unfair situation if safeguards are not in place. This article sets out safeguards recommended by the Equality Committee to protect parties who may have little power in the relationship or who may be at risk. If you have questions about this or any other equality and diversity topic, the CBABC Equality Committee would be pleased to hear from you.

This article was published in the February 2001 issue of BarTalk and is subject to the copyright by the British Columbia Branch of the Canadian Bar Association, 2005, all rights reserved.