Developing Frameworks for the Evaluation of Mandatory Mediation: Considering Systemic Transformation in Saskatchewan

In 1994, the Saskatchewan government implemented a mandatory mediation program, requiring litigants (for the first time) to mediate civil files. Many governments and civil courts have since adopted similar programs across Canada, moving mediation from the periphery to the center of civil process. The magnitude of this shift has not yet been fully captured in the accompanying research. Conventional evaluation research has used a narrow focus, driven by concerns for efficiencies. I will argue that conventional research provides an inadequate framework for continued study in this area, and will illustrate this through an analysis of the distinct character of the Saskatchewan program. The Saskatchewan objectives are tied, not to the increase of efficiencies, but to "systemic transformation" - an end result which depends on change in the culture oflitigation and change in lawyers' professional roles and identities. Qualitative research methods provide the program evaluator with a widened lens, and the Saskatchewan Evaluation (2003) makes some significant gains in this direction. I will describe the study's qualitative approach, and will organize the study's results in terms of quantitative and qualitative data. Although the study gathered rich information on lawyers' and clients' experiences, it left many questions unanswered. Using a grounded theory method, I will reanalyze the study data. A deeper analysis reveals common stories of clients and lawyers - glimpses into what is happening beneath the surface of the program's operation. I will conclude that the mandatory mediation program in Saskatchewan has inspired significant change, but has fallen short of systemic transformation. Both clients and lawyers view mediation as having unrealized potential. While clients see their lawyers as largely determining the process' success, only half of lawyers are attentive to the impact of their role. Changes in professional identity, a necessary ingredient in systemic transformation, are only beginning to occur. Using the concepts of story, ritual and metaphor to explain the cultural variables that influence lawyers, I will begin the construction of a broader analytical framework. I conclude that not only is more and different research needed, but that systemic transformation depends on a renewed commitment to dialogue and relationship between program managers, mediators, and legal professionals. i

Collaborative Family Law and Gender Inequalities: Balancing Risks and Opportunities

Collaborative Law (CL) is a unique settlement process increasingly used by family lawyers. In this article, the authors examine the potential of CL to alleviate the impact of gendered differences in bargaining power between family clients. Proponents suggest that the more extensive involvement of lawyers in the CL process can prove more effective in dealing with vulnerable clients than either litigation or family mediation in their current forms. Drawing on the available literature on CL, their own empirical research, and the extensive literature on gender imbalances in mediation, the authors examine the likely impact of both the background norms and unique structural features of CL on the experience of female clients. They argue that CL\u27s potential impact will depend largely on how sensitive lawyers are to the existence of gendered power imbalances, on whether they screen effectively, provide timely and specific legal advice, and work at more effective communication with their clients. Serious concerns are raised regarding the use of the standard clause disqualifying lawyers from acting in subsequent litigation. These concerns heighten the importance of adequate screening into the process

Mediator Discretion in Cases Involving Intimate Partner Violence

Mediation is a centerpiece in the ‘agreement culture’ around family law litigation. It is recognized by the courts as offering inherent protections to deal with challenging cases such as those involving intimate partner violence. To learn more about how mediators invoke and view the process’s protections, we conducted a series of interviews with senior mediators, trainers, and policymakers in the field. This article synthesizes current views within the mediation field about how to identify and screen for IPV, and implications for process management. At the heart of these interviews was the theme of mediator discretion: mediators describe and value discretion as endemic to the assessment of a person’s capacity and agency— to the assessment of contextual factors which may affect decision-making, engagement, and outcome. This article summarizes interview data around practical issues, such as how to navigate screening conversations, and also broader tensions surrounding the mediator’s work, such as the need to balance impartiality with capacity-building inside a process designed to help parties prepare for the future

Informed Decision-making in Judicial Mediation and the Assessment of Litigation Risk

Published in cooperation with the American Bar Association Section of Dispute Resolutio

Introduction: Domestic Violence and Access to Justice within the Family Law and Intersecting Legal Systems

The articles in this collection explore the access to justice issues that arise for survivors of domestic violence in their encounters with Canada’s family law system. While family law and family dispute resolution processes are the central focus of the articles, three contributions also address family law\u27s intersections with other legal domains (civil restraining orders, child welfare, and immigration). Common across the contributions is a desire to carefully interrogate the potential of law and legal processes to enhance—or conversely to undermine—the safety and well-being of survivors and their children

Introduction: Domestic Violence and Access to Justice within the Family Law and Intersecting Legal Systems

The articles in this collection explore the access to justice issues that arise for survivors of domestic violence in their encounters with Canada’s family law system. While family law and family dispute resolution processes are the central focus of the articles, three contributions also address family law\u27s intersections with other legal domains (civil restraining orders, child welfare, and immigration). Common across the contributions is a desire to carefully interrogate the potential of law and legal processes to enhance—or conversely to undermine—the safety and well-being of survivors and their children

Mediating the GM Foods Debate: Lessons from the Enduring Conflict Framework

Critics of the commercialization of Genetically Modified (GM) foods in Canada and the United States oppose the economic and political forces that create and approve the technology: the industry that develops it and the governments that approve its use. The conventional narrative pits the concerned public, labeled anti-GM, against the pro-GM interests of industry supported by business-friendly governments. Based on this binary view of the interests and motivations of stakeholders, conflict betwee

Mediator Discretion in Cases Involving Intimate Partner Violence

Mediation is a centerpiece in the ‘agreement culture’ around family law litigation. It is recognized by the courts as offering inherent protections to deal with challenging cases such as those involving intimate partner violence. To learn more about how mediators invoke and view the process’s protections, we conducted a series of interviews with senior mediators, trainers, and policymakers in the field. This article synthesizes current views within the mediation field about how to identify and screen for IPV, and implications for process management. At the heart of these interviews was the theme of mediator discretion: mediators describe and value discretion as endemic to the assessment of a person’s capacity and agency— to the assessment of contextual factors which may affect decision-making, engagement, and outcome. This article summarizes interview data around practical issues, such as how to navigate screening conversations, and also broader tensions surrounding the mediator’s work, such as the need to balance impartiality with capacity-building inside a process designed to help parties prepare for the future