Thoughts on Mediation

These remarks were delivered at the Third Annual Warren Winkler Lecture on Civil Justice Reform held in Ottawa on Tuesday October 6. This year's lecture was entitled "Perspectives on Procedural Reform in Family Law Matters" and included a panel discussion on mediation.

Mediation, while not the universal panacea that some of its promoters would have us believe, is an excellent tool for many who are involved in a family law dispute. Where the parties enjoy a relatively equal balance of power, have at least somewhat sophisticated communication and analysis skills and where both have legal representation, mediation can lead to an outcome in which both people feel invested and in which neither feels like either the winner or the loser. Certainly, children can benefit from such outcomes, in terms of custody and access arrangements that encourage cooperation and communication.

However, the increasing focus in government policy and public discourse on mediation as the way to go in family court concerns me a great deal. My work is in the area of violence against women; and here we see the many ways in which mediation provides none of the benefits I have mentioned above and can, in fact, create situations that are unsafe and even lethal for mothers and children.

Before I go further, my disclaimer: I do not deny the fact that rare situations exist where a woman is the primary protagonist to her male partner. Same sex violence is a serious reality, too. However, the numbers speak for themselves: intimate partner violence is predominantly perpetrated on women by their male partner or former partners. My language will reflect that reality.

Let me start with the story of a former client who came to me after she had “negotiated” a separation agreement with her former husband. This woman told me that she had entered mediation because her previous lawyer had persuaded her it was a faster, cheaper and better way to sort out her family law dispute. Like many women, she did not disclose to this lawyer that her partner had abused her; nor did she disclose this to the mediator.

During mediation, her husband would from time to time take a pack of cigarettes out of his pocket and either tap or place it on the table. She told me that one of her husband’s forms of abuse had been to burn her with cigarettes. Every time she saw that pack, she became afraid and, as a result, agreed to whatever position he was putting forward. This was a very private code that was unnoticeable to even a good, trained mediator. The result for her was a separation agreement that did not reflect her interests or the best interests of her children.

There have been significant improvements in training for mediators and in screening for abuse since I worked with this client. However, helpful as this is, it is not enough to ensure that vulnerable women do not end up in mediation. Why? Because, like my client, many women won't disclose and because the techniques of the abuser are subtle and unique to that relationship, very often unidentifiable to any outsider, however well trained.

You just can't count on being able to identify past power and control/abuse dynamics.

I can tell you from my own experience that, for many women, sharing the fact that they have been abused is not an easy thing to do. Some are so habituated to the abuse -- in fact, they may have grown up in an abusive family -- that they do not identify it as such. Because societal understanding of and, frankly, the legal response to, woman abuse, is so focused on physical abuse, it is not uncommon for women who are experiencing significant levels of psychological abuse to fail to identify what is happening to them as abuse. I have had more clients than I can count say to me: "He doesn't hit me or anything like that," before going on to detail severe psychological abuse.

And, finally, there continues to be so much shame associated with woman abuse, even for the victim, that women just don't want to talk about it. The fathers' rights fellows would have us believe that women claim abuse at the drop of a hat in order to advantage themselves in family court. My experience says otherwise.

My law practice focused on women who had experienced abuse; much of my clientele came to me as a result of word of mouth. Despite this, my clients often did not disclose the abuse they had been experiencing in the first or even second appointment. Imagine, then, the likelihood of a woman sharing this very intimate information in an intake interview for mediation.

Another significant concern about mediation for women leaving abusive relationships is the "looking forward" approach taken by many mediators. This is just not appropriate in cases involving woman abuse. The abuse must be an active component in deciding on what arrangements, especially for the children, will be appropriate in the future. Abuse does not end when the relationship ends, and to pretend it does puts women and children in danger. A quick perusal of the reports of the Ontario Domestic Violence Death Review Committee will confirm that most women are murdered after they have left an abusive relationship -- and often at access exchanges or other events that are related to the children.

Also of concern with the increased focus on mediation in family court proceedings is that what is presented as an option is often perceived as a direction or a requirement. Any parent seeking a custody and access outcome that is in the best interests of their children wants to appear cooperative with the court, including the judge and other court officials. Women who have been abused often have spent years doing what they have been told in order to avoid further violence. It was not unusual for my clients to report to me that the judge had "told" them to go to mediation. I knew this was not so, that likely the judge had suggested they give it a try, but if it is heard as an instruction, the damage is done.

Finally, Ontario says there is no mandatory mediation in family law, but that is really only true for people who can afford to pay for their own lawyers. Legal Aid Ontario often requires parties on certificates to participate in mediation if the case is dragging on and bills are mounting. This is nothing short of mandatory mediation, and should not continue. While I am sure we can all appreciate the challenges faced by LAO in meeting its mandate on a too-small budget, it should not be the most vulnerable who pay the price of this.

Let me conclude by reiterating my strong support for the use of mediation in cases that do not involve abuse or significant power imbalances and where the parties both agree to it. In such situations, it needs to be affordable to all and it needs to be clear that it is not a replacement for legal advice/representation.

Let me be equally clear in stating that I do not think mediation should be used in cases of partner abuse. Ever.

The price paid by women and children is just too high.