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Family mediation: The self-regulated profession | Malcolm Bennett, Vicky Visca and Mary-Anne Popescu

Tuesday, June 29, 2021 @ 11:40 AM | By Malcolm Bennett, Vicky Visca and Mary-Anne Popescu

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We are writing in response to Gary Joseph’s column published on June 22, 2021, in The Lawyer’s Daily, “Mediation: The unregulated profession.”

The Ontario Association for Family Mediation (OAFM) applauds the federal government for placing an increased emphasis on negotiated settlement under Bill C-78 of the Divorce Act and the Moving Ontario Family Law Forward Act, 2020 (Bill-207), and the Ontario government for ensuring meaningful and inexpensive access to family mediation through their mediation and information programs. We would like to highlight the presence of existing and comprehensive standards in place that guide and govern accredited and associate family mediators in Ontario.

The OAFM, governed by a board of directors, has existed since 1982 and has been successful at holding hundreds of accredited family mediators and associate members to a rigorous and comprehensive standard of practice, including a thorough requirement of screening for intimate partner and family violence both during the intake and throughout the entire mediation process, as well as ongoing professional development. Although family lawyers are not required to screen for violence in this manner, the OAFM pioneered the development of a policy on abuse and screening standards for mediators in 1994 because of the vulnerability and volatility inherent in family conflict.

An accredited family mediator must take a minimum of 200 hours in training, including 60 hours in family mediation (fundamental and advanced), 21 hours on screening for intimate partner and family violence, 21 hours on family law and 21 hours in family relations. Associate and accredited members must take 10 hours of continued professional development (CPD) annually, five of which are dedicated to updating standards for screening for intimate partner and family violence.

OAFM is the largest accrediting body for mediators in Ontario, devoting its energy entirely to the promotion and professionalism of family mediators in the province. OAFM has a comprehensive complaint’s policy and a committee committed to thoughtfully and systematically investigating all complaints and inquiries. Membership to OAFM is voluntary and members hold themselves to the scrutiny of the public if a complaint is received against them. Complaints to OAFM are low, on average two per year.

The Ministry of the Attorney General (MAG) relies on the OAFM policy on abuse and consults regularly with OAFM on key changes to the law such as the Moving Ontario Family Law Forward Act. MAG funds family and information mediation programs throughout the province and mediators must either be accredited or have equivalency of accreditation. Services include free on-site family mediation for matters before the court and off-site family mediation for more complex matters — the fees are on a sliding scale, determined by income and dependents. Of families utilizing this service, 75.3 per cent reach full or partial agreement through mediation. Mediators affiliated with OAFM and MAG roster mediators are required to have professional liability insurance and must attest to having such insurance annually.

Through a supportive pathway, the OAFM supports and encourages all family mediators to become accredited and only accredited family mediators (AccFMs) are advertised to the public by OAFM. OAFM members confirm their adherence to each year to the standards of practice. The standards set out the process and level of care that AccFMs must follow including ensuring:

  • confidentiality;
  • impartiality and procedural fairness;
  • signing an agreement to mediate that clearly sets out the process;
  • encouragement to receive legal Information and independent legal advice;
  • screening for intimate partner violence, power imbalances and appropriateness of mediation through process design;
  • a duty to minimize harm or prejudice to participants;
  • child inclusive mediation;
  • consideration of vulnerable persons.

OAFM’s standards of practice reflect that mediators must ensure that they are fully qualified to deal with the specific issues involved in a mediation, recognizing limitations in their ability to handle a matter outside the limits of their qualifications, education and experience. As well, mediators have an ongoing obligation throughout the mediation process to advise the participants of the importance and availability of independent legal advice and that the memorandum of understanding or mediation report prepared by the mediator are not legally binding. The standards of practice further reflect that mediators must not sign as a witness for any participant on any settlement document prepared as a result of mediation.

Regulation does not erase the problem of poor-quality professionals in any field and a review of any governing profession’s complaints process will support this. The public may lack awareness of existing mediation programs that provide access to accredited mediators enabling them to avoid the use of anyone claiming to do mediation without the benefit of a rigorous qualification process. OAFM and other accrediting organizations are committed to overseeing that family mediators are properly trained, held to a robust set of standards and accountable to their accrediting organizations and the public.

Malcolm Bennett is a senior partner in the family law department at McKenzie Lake Lawyers LLP. He has over 42 years’ experience both in court and in mediation as an accredited family mediator and arbitrator in family law. Vicky Visca is the president of the Ontario Association for Family Mediation (OAFM) and chairs the Child Protection Mediation Committee and the Child Inclusive Mediation. She has been a family mediator for over 35 years. Mary-Anne Popescu is the executive director of OAFM. As an OAFM accredited family and elder mediator and child protection mediator in private practice, she works to bring peaceful resolutions that have helped hundreds of families adapt to challenges and changes across the life cycle.

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