We’re happy to host a new feature on Robeside Assistance, which we are calling Long-Form. Long-Form welcomes contributions from the various committees and other closely related groups to the CCLA, on a topic of recent interest to their members. This month’s contribution is from Lisa Sharp of the Family Law Study Group, which holds regular meetings to discuss family law topics. For more information, please contact Lisa. Enjoy!

Mediation in family violence cases: A viable option to the family court system?

By Lisa Sharp

For some time, Ontario family lawyers have generally agreed that mediation should not be used in cases where there is any claim of family violence. This is primarily due to concerns that there will be an inherent power imbalance in these matters, and that an aggressive spouse can use this power over the victim during negotiations, which would likely result in an unfair agreement.

Over the past 13 years, I have represented both women and men in over one hundred cases where there has been evidence of family violence. In my experience, going to trial in this type of case is fraught with uncertainty, and is potentially more traumatic to the victim than attending mediation.

When we first meet with victims of abuse, they often have a strongly held idea that the family court system will protect them and their children by giving them sole custody and that the abusive parent will be stripped of their parental rights. In fact, this belief that the court will protect them often leads them to go to trial. But there is some evidence that these parties do not feel that the court was able to protect them or their children from their abusers during the trial or in the resulting decisions.

There are many reasons that our family court cannot provide more protection in these cases. First, it is rare for the court to totally stop all contact between an aggressive parent and their child. Notably, these types of cases have serious evidentiary problems, since victims of long term abuse and violence rarely report incidences to police, let alone to their doctors or even to their family members. As many experienced counsel are aware, most victims are deeply embarrassed and frightened to report the reality of their lives for many different reasons.

In addition, often the only witnesses to family violence are the children, and the court is unlikely to allow them to be called as witnesses in our family courts. In one of my cases, the police had investigated a parent for sexual abuse of a three year old, but they did not charge the parent because the three year old boy was considered too young to testify. In the same family case, the father received a 50/50 parenting schedule. This decision shocked my client.

As well, there is a belief that incidences that took place during a marriage will not be a problem once the parties are no longer living together; and that if we can deal with handling the logistics of communication, things will improve, since these incidences are considered “historical incidents”. In my experience, the type of parent who will stalk and harass their ex upon separation isn’t going to stop these harmful behaviours after a trial.

Another problem with these cases is that an abusive spouse will often fire their lawyer early on in the court process and represent themselves. This leads to many new ways that they can harass the victim, including being able to cross examine the victim during the trial, thus re-traumatizing them. The experience of a victim going through a family trial is harrowing given this factor.

These cases are known as “high conflict” cases, and a predominant factor is that often one or both parties suffer from mental health disorders, and they may not be willing or able to follow court orders that result from trials. In fact, I have observed cases where the parties are back in court within weeks of receiving a trial decision, since one or both of the parties do not accept the decision of the Court.

Given all of these factors, it is not surprising that our family courts struggle with how to handle these cases.

Because of these experiences, I have reconsidered the use of mediation for complex, high conflict cases, including family violence cases. My approach includes bringing an application to family court, and once preliminary issues have been taken care of, I strongly urge my clients to try mediation with an experienced family law mediator. The parties are kept in separate rooms with their lawyers, and negotiations can take place over a few days. The outcomes have been outstanding, with participants feeling like their voices are being heard, and they state that they feel like many of their concerns have been addressed. In addition, the mediation process can be therapeutic for both parties, and it is more likely that their continuing conflict with respect to the children will be de-escalated.

In fact, if both parties are treated with dignity and respect, it is much more likely that they will comply with the resulting court order, since they have been part of the process in creating the agreement. It is true that the victim of family violence may have to make some concessions from their original position, but this is no worse than what they might obtain as a trial outcome.