The legal profession has come a long way in screening for intimate partner violence. We now have the right questions, but where are the answers?
The inaugural issue of JUST. included the article Hearts Broken All Around by Toronto family lawyer Michael Cochrane. It stopped me in my tracks.
The story was about Cochrane’s client, who killed his own wife in the midst of a litigation case. The police subsequently shot the client to death.
I admired Cochrane’s frank and courageous account of this disturbing case. I have known Michael a long time, and the honesty and genuine pain reflected in his writing was true to his character.
How much information should we ask of our clients when there are no outward signs of risk? And what do we do with the information if we get it?
His story reminded me of something I learned when I stopped being a traditional family lawyer 13 years ago to practise mediation, arbitration and teaching: The legal profession had much to learn from others about intimate partner violence. We have come a long way since then. The question I ask is what should we now do with that knowledge?
In this case, both Cochrane and the client’s wife’s lawyer believed that they had a run-of-the-mill case. They saw no signs of what was to come. They took the clients through the usual steps: starting a proceeding, conducting negotiations, case conferences and four-way meetings while the case wound its way through the system and, eventually, a court date.
The parties had always appeared to be civil to one another, and genuinely nice people. The murderer displayed no warning signs; he was unfailingly civil and cheerful throughout with his lawyers.
The story compels us all to confront a difficult question: How much information should we ask of our clients when there are no outward signs of risk? And what do we do with the information if we get it?
This is not a question about legal responsibility. That much is clear. We have a common law “duty to warn” where we learn, even in the midst of a solicitor-client relationship, of an imminent and serious threat to cause harm to another. Beyond that, our lawyer’s duty of confidentiality prevails.
Currently, the Law Society does not require any form of domestic violence screening or training for family lawyers other than what they learn in the bar admission process.
This is also not a judgement about the lawyers in this tragic case. There is no suggestion that either could or should have done anything differently. There is nothing we can do about clients who do not want to disclose information to their lawyers. Be it feelings of despair, rage, depression, fear or terror—if a client chooses not to disclose, it cannot be said that the lawyer ought to have known.
It is also not to suggest that if we ask the questions, the clients will answer them. Or that if we assess a case as having a particular degree of risk, we are therefore liable if we made a mistake. This work is far too difficult to propose such simple correlations.
The question is more about what we can learn from what others are doing, and perhaps incorporate some of their practices to offer our clients dispute resolution processes that are most likely to meet their needs. Currently, the Law Society does not require any form of domestic violence screening or training for family lawyers other than what they learn in the bar admission process.
The academics will tell us that it is well established that the risk of harm or murder for victims of certain kinds of domestic violence is at its greatest when the parties separate. And that about half of all people experiencing a separation – regardless of income or social status-- report being assaulted by their partner at some time.
They will also suggest that research indicates that dispute resolution processes less adversarial than litigation may be safer for victims and perpetrators of domestic violence--- if those processes are designed to provide safety for both parties.
The mental health professionals will tell us that there are personality characteristics, behaviours and family histories that are predictive of danger.
Mediators will tell us that neither victims nor perpetrators of violence are likely to offer up the information to either their lawyers or their mediators, and that a methodical, patient, confidential and non-judging process of questioning is necessary to elicit such information - if the client is willing to disclose it at all, as the victims and perpetrators often have compelling reasons to not disclose.
The 1992 murder of Ottawa lawyer Patricia Allen by her estranged husband prompted Toronto sociologist Desmond Ellis to design questionnaires for mediators to help them better diagnose relationship dynamics. Since then, Ellis has created screening tools that have been proven to accurately predict the chances of a male abuser harming or killing his spouse during the post-separation negotiation process.
Ellis and others have developed a wide range of such predictive screening tools, mostly designed for use by mediators. Other professionals such as police, mental health professionals and medical practitioners have their own predictive screening tools as well.
Mediators who are accredited by mediation governing bodies, and those who work in Ontario’s courts, are required to use such screening tools before agreeing to begin mediation. They use the information not so much to turn clients away, but rather to make informed procedural choices, including safety planning for both parties. Screening is also a component of most collaborative law processes.
Our collective professional understanding of the dynamics of violence and control in intimate partner relationships has grown since the Ontario Ministry of the Attorney General began to regulate family arbitrators in 2007. All family arbitrators (whether they are lawyers or not) must take training on the subject, and must be familiar with the various screening tools and their use.
That training, generally provided by experienced family mediators, family court workers who support victims of violence and by academics, has enriched our knowledge base. Many family lawyers, for instance, understand that there are different types of domestic violence, and that not all types present the same risk. Many are familiar with Des Ellis’ screening tool and others that are in use.
Many family lawyers know of the Ontario Coroner’s Domestic Violence Death Review Committee Report, where one can learn the disturbingly consistent factors often present in murders and murder-suicides.
It is not an easy task to adapt mediation screening protocols to the lawyer-client context. Collaborative practitioners can do it more easily as there is the option to include a neutral mental health professional in the process who can meet with and screen both parties for risk of harm. Adapting the process for traditional family law is more challenging.
In other words, we are left with more questions than answers. Fortunately, family lawyers are increasingly collaborative, reflective and informed about this daunting subject.
On February 7, attend OBA Institute's Neuroscience for ADR: Strategies for Responding to Neurological Reactions in Clients, Counsel and Yourself, where HIlary will speak about the impact of power imbalances on the brain during disputes. .
About the Author
Hilary Linton is a Toronto lawyer, mediator, arbitrator and teacher. She is the principal of Riverdale Mediation Ltd. and president of mediate393 inc., which provides court-connected family mediation and information services in Toronto’s provincial and superior courts.
Further Resources
It's Time for All Family Lawyers to Screen All Cases - by Hilary Linton
The Domestic Violence Death Review Committe Report
Mediating and Negotiating Marital Conflicts
by Desmond Ellis and Noreen Stuckless
Best Practices for Representing Clients in Family Violence Cases
by Cynthia Chewter