Making the Links in Family Violence Cases: Collaboration among the Family, Child Protection and Criminal Justice Systems

Chapter 8 - Out-of-court dispute resolution

While much of this report focuses on the court system, it is important to remember that the majority of family law, child protection and criminal cases are resolved without a trial. In the context of family law, dispute resolution mechanisms such as mediation, negotiation, with or without lawyers, and collaborative law may be used to achieve resolution out of court. Mediation is also used in the child protection context. Similarly, many criminal cases settle by way of plea negotiation, with some resulting in the dropping of charges. Thus, issues related to information sharing and collaboration need to be considered in this context.

While settlement is generally desirable, it cannot be assumed that risk has been addressed during the negotiation or settlement of the family law issues. Research suggests that in some cases where settlement has occurred, safety will continue to be an issue and that there may still be risks to family members.Footnote 340

Case Study – Potential continuing risk where issues settled out of court

The Ontario Domestic Violence Death Review Committee has pointed to the risks faced by victims of abuse where they arrive at family law resolutions outside of the court system. In 2006, they reported the following:

This case involved an attempted homicide followed by suicide. The couple had recently separated following recurrent incidents of domestic violence that included threats by the male perpetrator and assault with a weapon. The female victim, who had sole custody of her two children, had moved out of the matrimonial home but there were ongoing access issues for the perpetrator. He entered her apartment early one morning while she was taking the children to school. When the victim returned home, her estranged husband came out of the kitchen and an argument ensued, during which he stabbed her several times and then stabbed himself. The victim was able to escape the apartment and seek help, ultimately surviving her injuries. The perpetrator subsequently died in hospital from his self-inflicted stab wounds.

Discussion: Although there was insufficient information in this case review to offer specific recommendations, the circumstances highlight the plight of abuse victims who must remain in contact with their ex-partners due to the need to support on-going access to the children. In this matter there had been an extensive history of serious domestic violence, but the perpetrator still had unsupervised visits to the children on a regular basis. This access appears to have been an agreement between the parties rather than the product of any litigation or family court decision. The perpetrator continued to exhibit jealousy, and had not been part of an intervention for his problems with domestic violence and his history of being abused as a child. The case demonstrates the challenges in providing safety for victims and their children when there is ongoing access by the perpetrator without a safety plan or intervention to manage the risks.

Excerpted from: Ontario Domestic Violence Death Review Committee, Annual report to the chief coroner, 2006 (Toronto, ON: Office of the Chief Coroner).

There are several information-sharing and coordination implications related to out-of-court settlements. It is important that Crown prosecutors and child protection officials keep abreast of progress on related family law files. Claims for restraining or protection orders, or for the protection of children, such as requests for “no-contact” or “supervised access,” which are made in initial family court documents, may never be heard by a court if the case is settled. Child protection officials, for example, may wish to monitor the outcomes of family law cases that have been resolved by way of mediation or some form of negotiation, in order to explore whether adequate protection has been provided for children.Footnote 341 As part of preparing submissions with respect to conditions of release or sentencing, it is also important for Crown prosecutors to be aware of what the parties have agreed to, both with respect to contact with each other and with respect to contact with the children.

It would be improper for a Crown prosecutor to make a decision about the course of a prosecution, including plea negotiations, based on how that decision might impact on a child protection or family proceeding.Footnote 342 Further, Crown prosecutors are not civil lawyers and cannot give advice to victims about how a criminal prosecution might influence a civil proceeding. Nonetheless, there is recognition that it is important for information about the outcome of a criminal proceeding to be communicated to the victim.Footnote 343 The outcome in the criminal proceeding may impact the type of relief requested in the family law proceeding. In some jurisdictions, information about the outcome of the proceeding will be conveyed to the victim by the Crown prosecutor. For example, in Alberta, the Victims of Crime ActFootnote 344 and Protocol require that the prosecutor both discuss the outcome of the prosecution with the victim (with the victim’s counsel present if requested by the victim) and explain what happened in court. In other provinces, this information would be conveyed by victim services.

8.1 Mediation and other dispute resolution

In a family law context, most cases are settled in negotiation, mediation or judicial dispute resolution processes and do not continue as contested hearings followed by a judicial decision. Because research suggests that many requests for protective provisions (e.g. supervised access) are abandoned during negotiation and mediation processes, there is a considerable amount of debate and controversy about whether dispute resolution mechanisms such as mediation are appropriate in family law cases where there is family violence.Footnote 345 Some oppose mediation where there has been family violence, citing concerns about safety risks, fear and intimidation, and unequal power dynamics that can adversely affect a person’s ability to negotiate safely and in their own interest. They argue that it can put victims in an unsafe situation and in a process that allows their spouse to continue to victimize, intimidate or bully them. Further, it is thought that victims may make agreements in mediation that do not deal adequately with safety issues and are not in their or their children’s best interest. This is because mediation lacks the strong partisan advocacy that some victims need and they do not feel empowered enough to adequately represent their own interests. As well, due to the focus on settling, some victims can feel pressured into agreement by both their spouse and the mediator.

Many of these concerns are countered by research and practitioners who believe out-of-court dispute resolution, such as mediation and family group conference,Footnote 346 can offer better outcomes and a more therapeutic and holistic approach that benefits family members and encourages longer-term solutions, even where there is family violence.Footnote 347 Proponents of dispute resolution also argue that the practice has responded to the concerns by implementing procedures to ensure a safe physical environment and mitigate threats to self-determination in the dispute resolution process.Footnote 348
The reality is, however, that some cases involving family violence are mediated. As a result it is important to consider issues related to coordination and collaboration in this context. The discussion below primarily focuses on mediation but would also apply to lawyers and others working with the parties in other collaborative planning and decision-making processes.

As a first point, both sides of the debate agree that in cases where there is family violence, screening to identify safety concerns is necessary. The view is that this screening must be mandatory and used to adapt the mediation or other dispute resolution process to ensure that the participant’s concerns are mitigated. Specialized training regarding violence issues for mediators is also critical from this perspective.Footnote 349 Courts as well, may have concerns about mediation or arbitration provisions in minutes of settlement, in cases of family violence. For example, in the case of Wainright v Wainwright,Footnote 350 the court questioned, and ultimately replaced, a clause which provided for mandatory mediation/arbitration. This was because the court found that the mother feared the father, and the father had trouble focusing on his child’s needs when they conflicted with his own.

How prevalent is screening?

According to a small scale national survey of mediators, the majority do screen for family violence (93%).Footnote 351 In contrast, most Canadian lawyers do not systematically screen for family violence. In a survey of lawyers attending the National Family Law Program in 2010, 83% indicated that they never or rarely use a screening tool (e.g. standardized test) to identify cases of family violence.Footnote 352

Second, where there are ongoing proceedings or orders in place, for example in the criminal justice system, it is important for the mediator or other dispute resolution professional to be aware of those proceedings. This information is often very relevant. In order to assist with the screening process and the determination of whether mediation is appropriate, at the initial intake meeting the mediator can ask about previous or outstanding criminal charges or orders. The mediator can then obtain copies of the orders. This is the approach taken in court-annexed mediation in Ontario.

If, for example, there is a criminal or civil protection or restraining order in place which prohibits all contact, both direct and indirect, between the parties, unless and until such a provision is no longer in force, the mediation cannot proceed. Even if contact is not completely prohibited, the existence of a criminal proceeding or other proceeding should result in further probing about the nature and extent of the family violence in a particular case. This can inform what, if any, modifications might be necessary to the mediation process to promote safety. Aside from ensuring the physical safety of the parties, these could include agreed signals between a client and mediator about that client’s comfort level, having the client attend with a support person, or establishing “ground rules” for the mediation. Footnote 353 A similar approach can be helpful where other forms of dispute resolution are used.

Even outside of the screening process, it is also important for the mediator to be aware of other relevant proceedings and their status. Mediation requires the full commitment of both parties and if, for example, there are ongoing criminal proceedings, there may be reticence on the part of the accused to participate and engage in full disclosure. This may undermine the process and the ability of the parties to reach a resolution and therefore, knowledge of the stage and timing of the criminal law proceedings can assist in determining when best to engage in the mediation process.

8.2 Promising practices

8.2.1 Training and practice standards

British Columbia’s Family Law ActFootnote 354 requires all family dispute resolution professionals, including lawyers, family mediators, family arbitrators and parenting coordinators to screen for family violence to ensure the processes used are safe and appropriate to the family’s circumstances. The Family Law Act Regulations also set minimum training and practice standards for non-lawyer family mediators, family arbitrators and parenting coordinators who wish to assist people to resolve family law disputes.

These family dispute resolution professionals must meet a reasonable minimum standard that includes a level of family related experience and training in their area of practice. They must take training on family law and must take a minimum of 14 hours of training in screening for family violence. As well, they must take at least 10 hours a year of ongoing training to ensure their training remains relevant.

The professional is required to confirm to the parties that they meet the minimum statutory requirements. Also, they must be members of a professional body (such as the College of Psychologists) or a dispute resolution organization (such as Mediate BC or the Parenting Coordinators Roster Society). These organizations have complaints and discipline mechanisms that their members are subject to.

The British Columbia Law Society has implemented new practice standards for lawyers who act as family law mediators, parenting coordinators or family arbitrators. The new Law Society rules are similar to the standards provided under the regulations for non-lawyers. This will ensure that family dispute resolution professionals, whether they are lawyers or non-lawyers, meet minimum standards.

8.2.2 Standardized assessment forms

In British Columbia, all clients who seek services from a family justice counsellor (a government funded service) for information or dispute resolution services concerning their family law matters complete a comprehensive assessment which screens for the following: risk of family violence, child protection issues, mental health issues, drug and alcohol issues, and financial issues. This assessment is used to determine whether mediation is an appropriate dispute resolution process for a particular family, and to facilitate effective referrals that address the family’s needs. The comprehensive assessment process is also being used by family justice counsellors preparing court-ordered custody and access reports. In this context, the assessment screens for family violence issues and flags other issues that may impact the parties’ abilities to care for their children.

8.2.3 Practice standards and safeguards to address concerns about child protection mediation

Several provinces, for example Alberta, use mediation in the child protection context and have developed practice standards, policies and safeguards to address concerns related to cases involving family violence. In child protection mediation programs, the mediation generally focuses on issues such as amendments to case plans, access, conditions attached to supervisory orders or whether a child should remain in care. The Child Protection Mediation Practice Standards generally prioritize safety of all participants and mediators are required to adhere to the standards. Participant safety at the mediation is a priority and a child protection mediator must make every reasonable effort to identify threats to the safety of any participant, and either make the mediation process safe or terminate it safely. The Association of Family and Conciliation Courts has established Guidelines for Child Protection Mediation. While these guidelines indicate that family violence should not necessarily preclude child protection mediation, they recognize the importance of screening for family violence, and that “mediation is not appropriate when a mediation party is unable to safely advocate for his or her needs and interests or anyone’s safety may be endangered as a result of mediation.”Footnote 355

It is important to note that in some of these cases, there may be related criminal proceedings or family law proceedings which have been adjourned to allow the child protection mediation to take place, and coordination is a key factor in this context. One of the challenges for the mediator is making a determination as to whether or not to request that a criminal “no-contact order” be temporarily varied to allow the participants to participate in the mediation process.Footnote 356 Another challenge is to determine at what point in the criminal process it will be productive to engage parents in child protection mediation. If there is a concurrent unresolved criminal matter involving assault of the child, parents and their legal counsel generally will have concerns about disclosure even if the process is without prejudice. In some provinces, because child protection social workers are one of the key participants at the mediation, and are most often aware of criminal matters that relate to their clients, knowledge about the criminal proceeding and any other relevant orders can be brought to the attention of the mediator.

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