Making Mediation Safer

Masic 4 inter-personal violence screening

Making Mediation Safer

Until recently, many mediators felt that mediation would be inappropriate where there is a history of Inter-personal Violence (“IPV”). That perspective has evolved and there is now recognition that, with appropriate screening and accommodation, mediation is safe and effective.

The caveat to this perspective is “appropriate screening.” Since 2013, the BC Family Law Act, has required Family Dispute Resolution Professionals (“FDRPs”), to screen for IPV (s.8(1)) and determine the appropriateness of alternative dispute resolution (“ADR”) options (s.8(2)). FDRPs include lawyers, mediators, arbitrators, and others involved with family ADR.

Appropriate screening for IPV is essential for the safety and fairness in the mediation process. The “Mediator’s Assessment of Safety Issues and Concerns” (“Masic”) is widely recognised as being an effective and versatile screening tool. It is free-sourced and easy to use.

The Family Relations Act (“FRA”) was pivotal in expanding the definition of family violence well beyond actual physical violence to include sexual, psychological, economic abuse, and other forms of threat or coercion. However, the FRA did not specify what would be appropriate screening, and there are many different screening tools currently available.

The 2017 Report of the BC Family Mediation VAW Project advocated for standardized and consistent screening for IPV in family law disputes.

The 2018 study, Examining Domestic Violence Screening Practices of Mediators and Lawyers (“EDV”), by Dr. Katrina Milaney and Nicole Williams made a comprehensive review of IPV screening practices and available tools.

In the EDV study, the Masic was identified as “a behaviorally specific screening tool that can be used to better identify whether or not mediation is appropriate for clients. Diverse forms of abuse are assessed, including “psychological abuse, coercive control, physical violence, extreme physical violence, sexual assault/abuse, stalking, and fear” (internal citations removed).

The Masic, currently in its 4th edition, was developed by Professors Amy Holtzworth-Munroe, Connie J. A Beck, and Amy G. Applegate of Indiana University’s Maurer School of Law. It is designed to take 15-20 minutes to administer per party and does not require extensive training. This addressed some concerns that IPV screening can be difficult, cumbersome and time consuming.

The Masic does require practice to become proficient. It is recommended that users roleplay to practice the process with other practitioners. This can be done on an informal basis or in a half-day training session.

One of the benefits of using a standardised practise tool to assess interpersonal violence is that it can also protect practitioners from liability in the event that a party challenges a mediated agreement on the basis of power imbalance or IPV history.

Due diligence can be demonstrated by the competent use of a standardized screening tool. However, it is also important to remember that the obligation to screen for violence is on-going.

The goal of all mediated agreements is a fair and just resolution of the dispute. By ensuring that IPV and the associated power imbalances are addressed and mitigated, a mediator can remove a major obstacle to success.

Top Tips:

  • Always remember that your safety is paramount. Assess risk and take precautions.
  • Build a network of colleagues familiar with IPV and screening. Share ideas and best practices to improve safety.
  • A good screening tool is no substitute for a clear understanding of IPV dynamics. While practitioners are required to have a minimum of 14 hours of family violence training under the FRA, you should continue to expand your knowledge base.
  • Document all screening related activity. Ensure that you can demonstrate consistent and ongoing screening if challenged in the future.

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