Pursuant to Standard 3 of the Family Dispute Resolution Institute of Ontario, “FDRIO,” Standards of Practice, FDR Professionals shall do no harm. The Family Arbitration Section values the importance of screening parties for coercion and control, domestic violence, power imbalances, and other matters that may affect their capacity to participate. Accordingly, the members of the Family Arbitration Section commit to screening in accordance with the following Guidelines.
Purpose of Screening
- Screening is a process by which FDR professionals identify, assess and manage power imbalances, including a risk of harm arising from coercion and control and family violence. It is the responsibility of family arbitrators and mediator-arbitrators to ensure that they incorporate reliable screening protocols into their FDR processes. Screening should be done to assess readiness to proceed and ability to participate safely and effectively, and must include such sources of power imbalances as coercion and control, a history of violence, addiction, substance abuse, mental health, and other matters they deem appropriate.
Screen All Participants
- Screening must be done before the parties sign an Agreement to Arbitrate or Agreement to Mediate-Arbitrate and continually throughout such processes.
- The Arbitrator will refer both prospective parties to a qualified Screening Professional who will conduct a Third Party Screening process in accordance with these guidelines.
- The Mediator-Arbitrator will either screen all prospective participants themselves or will refer both parties to a qualified Screening Professional who will conduct a Third Party Screening process in accordance with these guidelines.
- Screening will always occur in person rather than by telephone or online unless it is not feasible to do so.
Training and Insurance
- The Screening Professional or the Arbitrator/Mediator-Arbitrator must have received a minimum of 21 hours in training for screening by a trainer whose course has been approved by FDRIO, OAFM, or ADRIO, or a trainer whose course otherwise meets their standards.
- The Screening Professional or the Arbitrator/Mediator-Arbitrator will satisfy the continuing training requirements of the Attorney General of Ontario, which currently require ten hours of continuing education/training every two years of which half must be on issues relating to domestic violence.
- The Screening Professional or mediator-arbitrator will carry professional liability insurance for Screening.
Screen Parties Separately
- The Screening Professional or the mediator-arbitrator will screen both parties separately.
Third Party Screening Agreement
- Where Arbitrators or Mediator-Arbitrators rely on a Screening Professional, they will require the parties to enter into a Third Party Screening Agreement with that Screening Professional.
- The Third Party Screening Agreement will set out the nature of the relationship between the parties and the Screening Professional, which will include the following:
- the screening process is confidential subject to the standard legal exceptions to confidentiality;
- the Screening Professional will provide a confidential report to the Arbitrator/Mediator-Arbitrator alone;
- the Screening Professional cannot be called as a witness to give evidence about the screening process;
- the screening process is voluntary and either party can withdraw (with the result that the Arbitration or Mediation-Arbitration will not proceed); and
- the relevant qualifications and insurance coverage held by the ScreeningProfessional.
Screening of Clients by Their Own Lawyers is Not Sufficient
- Appropriate screening by counsel for clients is not a substitute for screening by the Screening Professional Arbitrator/Mediator-Arbitrator, even if counsel have taken the required Screening training.
- Prior to screening, the Screening Professional or the Mediator-Arbitrator will inform each party of the purpose of the meeting and assure them that the information provided will be kept confidential (other than in the form of a report to the Arbitrator), and in particular, that it will not be revealed to the other party or their counsel , as well as the limits of confidentiality, in accordance with Standard 5 of the FDRIO Standards of Practice.
- If the screening is conducted by the Mediator-Arbitrator, the Mediator-Arbitrator will segregate the screening notes and their Report (if any) from the remainder of the file.
- Arbitrators will segregate the Third Party Screening Report from the remainder of the file.
Agreements to Arbitrate/Mediate-Arbitrate
- All agreements to Arbitrate/Mediate-Arbitrate will include:
- a section on screening that describes the screening process followed by the Arbitrator/Mediator-Arbitrator and incorporates the provisions of this Policy;
- Acknowledgements by the parties that they have been screened’
- A provision that all notes, records, communications, reports, and other documents relating to the screening process are confidential and will not be disclosed to anyone other than the Screening Professional or the Arbitrator/Mediator-Arbitrator or Arbitrator, nor provided to the court, nor referenced in any court documents, unless otherwise required by law or order of the court.
- A provision that all notes, records, communications, reports, and other documents relating to the screening process are confidential will not be disclosed to the court and they will not be referenced in any court documents, unless otherwise required by law or order of the court.
Screening Instruments or Tools
- The Screening Professional or the mediator-arbitrator will be familiar with the range of currently used screening instruments and tools and know whether and how to use them. If appropriate, they will utilize an appropriate screening instrument or tool, the inventory of which is extensive and must be updated from time to time.
Designing a Safe Process and Referrals for Safety Planning
- Screening Professionals, Arbitrator/Mediator-Arbitrator shall be familiar with the ways of planning a safe process for those who are proceeding, the resources in their communities that support vulnerable participants, the principles of and protocols for safe termination of processes, and the resources available in their community to assist parties in making safe and effective process choices in addition to or instead of mediation or arbitration.
Screening Notes and Reports
- The Screening Professional or mediator-arbitrator will determine whether the parties are appropriate for arbitration or mediation-arbitration, and the terms and conditions of the process as they deem necessary.
- The Screening Professional will prepare a confidential Report to the Arbitrator as to whether it is appropriate for arbitration or mediation-arbitration to proceed, and if so on what terms and conditions, or whether it is inappropriate for the case to proceed to arbitration or mediation-arbitration. In the discretion of the Screening Professional, the Report may contain as much detail as deemed necessary to enable the Arbitrator/Mediator-Arbitrator to reliably comply with their duty to design a safe and effective process and to consider the results of the screening process throughout the arbitration.
- The notes and Report of the Screening Professional or Mediator-Arbitrator will not be shared with the parties nor their lawyers.
- The Arbitrator/Mediator-Arbitrator will inform the parties and their lawyers of the results of the screening process in a way that they deem safe to avoid any adverse consequences for either party.
Refer to Screening Report/Notes in Arbitration/Mediation-Arbitration
- The Arbitrator/Mediator-Arbitrator will refer to the Report of the Screening Professional throughout the course of the arbitration or mediation-arbitration to determine whether, at any time, circumstances have changed in such a way that causes the arbitration or mediation-arbitration process to no longer be appropriate, or for the process as designed to be no longer appropriate.
- If circumstances arise during the arbitration or mediation-arbitration that give rise to any risk of harm arising from power imbalances, the arbitrator or mediator- arbitrator will refer the parties back to the same Screening Professional for an updated Screening Report.
- Where the mediator-arbitrator did the screening, the results of the screening process will be taken into consideration by the mediator-arbitrator at all times during the mediation-arbitration process. If circumstances arise during the mediation-arbitration that give rise to any risk of harm arising from power imbalances, the mediator-arbitrator will pause the process and conduct an updated screening interview with each party.