Wainwright v. Wainwright – Screening Requirements in Arbitration

The parties were married in 2007 and separated in 2009. The separation came after a domestic incident in which the father was found guilty of assault on the mother. There was one child of the marriage, Ellie, who was born in 2008.

After attending several motions, the parties signed a settlement agreement which contained mediation/arbitration clauses.

Justice Nolan took issue with these clauses and questioned whether they should be included in the final order. She noted that a court can refuse to include a mediation/arbitration clause in a final order if it is determined that the clause would not be in the best interests of the child. In this case because of the domestic abuse, there is was issue whether the mother would be freely engaged in mediation as there was a possibility of a power imbalance.

In conclusion, Justice Nolan found that the parties could participate in mediation/arbitration, but only if there was a proper intake for mediation in accordance with Rule 17(8)(b)(iii) of the Family Law Rules which include screening in accordance with the procedures approved by the Ontario Association for Family Mediation (“OAFM”) and the Ontario Ministry of the Attorney General.

Through her decision, Justice Nolan provides an in depth analysis regarding the role of Screening Requirements in Mediation/Arbitration. In summation, Justice Nolan discusses the literature as well as her thoughts on screening and the policies of the OAFM. The OAFM has a specific policy on abuse which states that parties must be screened before they attend mediation.

Justice Nolan begins by noting that Alternative Dispute Resolution (“ADR”) is appropriate in many family law cases, and that parties should be encouraged to explore alternatives to litigation. At the same time, she notes that mediation is not appropriate in every circumstance involving a family breakdown.

The assumption is that mediation in cases of domestic violence is probably inappropriate as the concern in mediation is the impact that abuse has on its victim. Abuse functions to secure power and control for the abuser and to undermine the safety, security, self-esteem and autonomy of the abused person. This being the case, mediation cannot be fair if one of the parties is unable to mediate effectively and competently. For this reason, “mediators need to identify which cases are inappropriate for mediation, which are appropriate for specialized mediation and which may proceed in the usual way.”

The first step of OAFM’s standards for assessing whether mediation may be appropriate is a screening process which screens clients for any occurrence of abuse to determine which case are inappropriate for mediation, which require additional safeguards, in addition to, or instead of mediation, and which should be referred to other resources.

Initial screening is conducted separately with each party, commonly using a structured questionnaire. Screening should also continue throughout the mediation process.

Screening is a simple concept, with its purpose to ensure that parties choose a process to best suit to their circumstances, needs and personalities.

Screeners are looking for anything that might make one or both of the parties vulnerable. These factors include mental health, drug or alcohol abuse, physical illness, difficult personalities, or a history of domestic violence etc.

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