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Mediator/arbitrators screen by law – why don’t judges?

February 17, 2012
  • The first step for a mediator or arbitrator is to ascertain whether there is a power imbalance.
  • Often that task is relegated to each party’s lawyer.  In most cases, the lawyer is ill equipped to carry out that task. 
  • Courses are offered to train individuals on how to determine whether power imbalance exists. 
  • By law (Arbitration Act of Ontario), secreening must take place prior to arbitration. 
  • Unfortunately, there is no requirement for power imbalance screening prior to either mediation or litigation. 
  • Query how a judge could determine whether one party to a lawsuit was threatened with dire consequences by her spouse if joint custody was opposed or even not awarded. 
  • Frankly, the judge would have no way of knowing that circumstance.  The problem is the cost of administrating such screening in advance of all family law procedures such as Motions and trials.
  • It’s still a good idea though – whose time has come.
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