Hi, my name is Daphna Schwartz and I am a lawyer with Feldstein Family Law Group. Today, I am going to talk to you about mediation where there has been domestic violence.
In Ontario, there are 47 specialized family courts in locations across the province that each offers family mediation and information services. Using the assistance and encouragement of a mediator who acts as a neutral facilitator, mediation provides an environment where parties can voice their opinions, the degree of conflict can deescalate, and separated spouses can reach a mutual understanding and create a self-determined arrangement.
Traditionally, mediation has been avoided where there has been a history of domestic violence because of presumed power imbalances. However, many domestic violence victims have found mediation to be empowering because it enhances their ability to stand up for themselves. Some victims can negotiate effectively and are not disadvantaged in mediation from power imbalances. Others feel that they should have the right to weigh the benefits and risks of mediation themselves.
The screening process, which in some cases determines whether mediation is appropriate, assesses power issues on a case-by-case basis, paying particular attention to duration and frequency of domestic violence, abuse of alcohol or drugs, mental health, and other family dysfunction. The screening process maximizes safety and fairness by evaluating whether each party has the ability to negotiate on his or her own behalf in mediation. This process determines that both parties will be participating voluntarily and that both parties are informed as to their rights and obligations under the law. Further, each party believes that the other is negotiating in good faith and any agreement reached is reached without intimidation. If screening results indicate that there would be a power imbalance in the mediation, then mediation should not take place.
Mediation is therefore only an appropriate means to resolve cases with a history of domestic violence if it does so with evenhandedness and fairness to both parties, especially the victim. The best resolution of a domestic violence situation involves the least amount of emotional friction at a level that remains fair to both parties.
If you would like to learn more about mediation, please visit our website. To book an initial consultation to discuss your matter with one of our lawyers, please call: 905-581-7222.
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