This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.

I enjoy writing and do so to bring attention to cases or issues that I believe are important to the family law bar. I hope that my articles stimulate discussion among the bar. My recent comments in The Lawyer’s Daily (Mediation: The unregulated profession) relating to family law mediation certainly struck a nerve with many readers.

The fact that three separate “rebuttal” articles (Family mediation: The self-regulated profession; Ontario family mediation: World class excellence;  Holistic standards for unregulated profession of mediation) were felt necessary highlights, for me, part of the problem. There is not one governing body for mediators. I appreciate the rather passionate responses and criticism of my views, but I stand by them. Mediation is indeed an unregulated profession!

I believe that my critics view my thoughts through too narrow a lens. Each of the responses, detailed and passionate as they were, came from those with “skin in the game.” I have none. I am just a family lawyer. I regularly engage in mediation as counsel and regularly recommend to clients that they engage in mediation. However, I don’t mediate and don’t claim to have the skills necessary to do so. None of those who responded can say the same and no one in response confronted directly several obvious facts:

   1.  Each of the organizations referenced in the rebuttal articles are strictly voluntary;

   2. There is no mandatory membership in any of the referenced organizations for family mediators in Ontario;

   3. There is no mandatory screening requirements for mediation in Ontario. While these voluntary organizations may insist upon same for their members, mediations continue to occur throughout the province without screening;

  4. Voluntary organizations may set standards and demand continuing education, however, the failure to comply may lead to expulsion from the voluntary organization but cannot prevent a mediator from mediating.

I recognize and respect the fine work these mediation organizations do but let’s not pretend that these groups lack a self-promotion component. I don’t say this pejoratively, but it does exist. Those who wrote the rebuttal articles are certainly well intentioned and provided useful information about mediation services in the province, but they cannot deny the fact that these organizations promote the services of their members. Nothing wrong with that but that doesn’t obscure the facts noted above.

Consider this: a person trained in social work (even with a master’s degree in social work) cannot hold him/herself out as a social worker without registration in the College of Social Workers. Either you are registered and subject to the standards and disciplinary aspects of the college or you are not allowed to hold yourself out as a social worker. Not so with mediators.

Consider this: you cannot arbitrate family law disputes in Ontario without the mandated training and full compliance with the regulations passed pursuant to the Arbitration Act. Not so with mediators. No such legislation exists to govern their training, standards or discipline.

Consider this: paralegals are now fully regulated by the Law Society of Ontario. They are subject to mandatory continuing education and discipline for breach of the standards of their profession. Again, not so with mediators.

I suggest that a college of mediators be established with training requirements, standards and a disciplinary process. To mediate family law matters, membership in the college would be mandatory. The College of Social Workers has the right idea. As noted above, either you are a member or you cannot hold yourself out to the public as a social worker. The same should apply for mediators. Ask yourself whether you believe that voluntary governance works in the public interest. Generally, I believe in less government but in the case of services of this kind I accept the need for robust governance. Screening should be mandatory and legislated in the same way that it is for arbitrations. A comprehensive set of regulations should govern mediation contracts, process and those who mediate. Given the ever-increasing emphasis on ADR in family law, nothing less is acceptable.

I have a number of thoughts and ideas about family law arbitrations. I am sure those views, when published, will endear me to those who arbitrate in the same way my views on mediators have won the hearts and minds of those who mediate ... not!

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