Dr. Barbara Landau recounts the evolution of consensual dispute resolution and challenges in a time when mediation was really philosophical movement.
By Dan Couvrette, CEO, Family Lawyer Magazine, Divorce Magazine and Divorce Marketing Group
To read part 1 click here.
Dan: And you haven’t stopped teaching, you’re still teaching now, right?
Barbara: I’m still teaching Family Mediation and other conflict resolution methods. At the time mediation was really a philosophic/social activist movement. We felt we were saving people from an adversarial system and that feeling is still strong, but we got stopped-up short by women’s advocates. The shelter workers, the women who advocate on behalf of abused women, were very frightened by our movement. They really felt we were being naïve, that mediation assumed a level playing field, it assumed that people were acting in good faith, had equal financial information, and were reaching agreements voluntarily. Their concern was that mediation was so future-focused it ignored a past history of abuse and power imbalance.
The women’s advocates were actually being very successful convincing the government that family mediation should be disallowed. It’s much like the recent fight about family arbitration, but for a different reason. The New Democrats were in power, and the Attorney General, Howard Hampton, said to the OAFM, “Unless you can show that mediation is not harmful to women, we’ll shut it down. We won’t fund it, we won’t encourage it.” So I picked up the challenge and for the next five years created committees and conferences with women’s advocates and mediators across North America. It was wonderful. Together we framed a domestic violence policy that is still the policy across North America. It requires all family mediators — and family arbitrators — to attend a minimum of a two-day Domestic Violence Screening program. Today all clients must be screened individually for domestic violence and power imbalances. Depending on the outcome, clients are either referred to an alternative process or the process must be modified so that people are safe. I was very proud of that accomplishment because it’s lasted, it was passed unanimously by the OAFM board in 1994.
Dan: I know you have lots of accomplishments but is there one you’re particularly proud about or felt made the most difference?
Barbara: I think I am most proud of the Domestic Violence Policy, because it was accepted by both women’s advocates and by family mediators; that was a very difficult process.
Then the next big challenge was that family arbitration was going to be banned because of the concern about religious law being used as the basis for deciding family cases. Again I got a consensus group together with partners from lawyers, mediators and arbitrators. I involved religious communities as well. What we came up with was that the best protection for women in all religious communities was to abide by Canadian law because we had worked for many years to provide gender equality. Also we recommended that family arbitrators, lawyers offering ILA and screeners needed to be trained in screening, non-lawyer arbitrators needed to attend a minimum of 30 hours of Ontario and Canadian family law and all family arbitrators be trained in the arbitration process.
The third major accomplishment was the recent reforms to the way in which family law is practiced. Again my approach is always to involve a variety of stakeholders. Over the last five years we’ve come together across a variety of organizations and disciplines –lawyers, mediators, shelter workers, clients, government staff, and judges — to fashion the changes in the family law process. Maybe we can talk about that a little bit.
Dan: Sure. Is this in Ontario or is it across Canada?
Barbara: We built on similar movements across Canada. There have been significant reforms in New Brunswick, Quebec, Alberta and in British Columbia, but it seems that every province needs to work out its own system, so we built on all of them. We invited representatives from other provinces; we reached out to Australia and looked at their reforms as well as California, and then brought people together on a discussion paper that I chaired. When we brought people from all the different disciplines together, we went over each of the proposals that we had put forward in a discussion paper and asked people to improve on them. At the end of two days of consultations with about 130 people, I wrote the report (taking everyone’s suggestions into account) called “Home Court Advantage: Creating a Family Law Process That Works” that was given to Attorney General Chris Bentley. To his credit, within about four days of receiving our report, he said he was going to implement a number of the key recommendations and he has. They were implemented in the summer of 2011.
Dan: That’s a huge accomplishment.
Barbara: Well it’s huge, but I still think it’s vulnerable. It’s not been properly funded; there are some key pieces that still need to be put in place in order to achieve the full package. I could say what I think is really helpful and then I could indicate what I think still needs help.
Dan: Sure, go ahead and share your thoughts.
Barbara: Okay, well I think that the best thing that they’ve implemented is a mandatory family information session for everybody. As we recommended, the first part is attended by everyone. That part looks at different dispute resolution options that people could choose from and it gives an overview of family law. The second part is for parents of children under 21. The focus is on mediation, collaborative law and an explanation of what is included in a parenting plan. The emphasis is on cooperation and behaving in a less adversarial way. The other big recommendation that the AG accepted is that mediation services be available at every court, both on-site and off-site.
So those are huge, but where they haven’t gone far enough is they are expecting volunteers to teach these family information sessions. That is, one lawyer and one mediator are to spend 2-3 hours teaching these weekly sessions with no compensation. It is not sustainable to get good quality people to show up consistently for these sessions. Also, I think that it’s not adequate to have only a part of one session for parents. In Alberta and British Columbia they require attendance at two Parenting After Separation sessions and they’re now planning to increase this to three sessions for those in a high conflict relationship. The goal of these sessions is to better protect children at this vulnerable time by reducing conflict and encouraging non-adversarial processes, like mediation, for developing a parenting plan and support arrangements. And they pay a reasonable honourarium to presenters. Such a program would be a significant improvement for Ontario families.
The other major challenge to overcome is that we have a totally confusing court system. People have to choose between three types of courts and they can’t resolve all of their issues in one court. What we need is a Unified Family Court. We need it across Canada, but if Ontario were to adopt it, it would be a model for others. That’s where one judge is assigned to one family and hopefully that would include both child protection as well family-breakdown issues. The advantage is the judge would be familiar with the case and there wouldn’t be the frustration of parents having to explain themselves to a new judge every time they appear in court – and receive inconsistent decisions!
Also we need judges who specialize in family law, not a judge whose practice was in personal injury and now has to hear a family case. There’d be family law judges for family law cases. This requires federal/provincial cooperation to happen.
The last thing is that our family law needs to be simplified; we need to recognize that family law is not about the law, it’s about failed and changing relationships and we need to make it easier for people to get on with their lives. So that’s my wish list!
Dan: You’ve also taken on an even bigger challenge than transforming the family law system in Canada and that is to work in the area of peace in the Middle East. Please give us a little bit of background about your involvement with the peace movement.
Barbara: Well this is the part of my life that I really am committed to. I’ll just give you the underlying reason for my personal motivation. My daughter’s good friend was killed by a Palestinian bomb on a beach in Tel Aviv in 1990. And that sent us, our whole family, on a search for how we could better understand why somebody would want to kill an innocent teenager. We thought that it must be an act of real desperation. So our family went on an initial Compassionate Listening mission to the Middle East in 1999, spending time in Israel, the West Bank and Gaza, compassionately listening to Jews and Palestinians to deeply hear their stories. The premise was that a terrorist is someone who feels that his/her story hasn’t been heard and that maybe by listening to people we can start to shift their views and make them more open to hearing the other.
I returned a number of years later for a second Compassionate Listening mission. It was at a time when it was far less optimistic because the second Intifada had happened. When I returned from our first Compassionate Listening mission I started a Jewish-Palestinian dialogue group here in Toronto and joined a group of mental health professionals called Shrink the Gap which was another Jewish-Palestinian group. I’m currently part of a women’s dialogue group called Together in Hope, made up of Jews-Palestinians and Arabs. We meet regularly, we love each other, we’re passionate, we share information and educate ourselves about each other’s perspective. We are allies and friends committed to continuing that work.
My other focus is Jewish-Muslim relations. On the day after September 11th, I was really shaken. I believed that there would be an anti-Islam backlash, much as Jews have faced so much anti-Semitism. I remembered that a man who had taken one of my conflict resolution courses had introduced himself by saying he had created an organization called the Canadian Association of Jews and Muslims but it hadn’t been very active for several years and needed to be reactivated. So I called him and together we reactivated it. The most wonderful project we are working on now is called the Weekend of Twinning of Synagogues and Mosques. It is an initiative out of the Foundation for Ethnic Understanding in New York, and we are the Canadian arm. Together we are running programs where synagogues and mosques or Jewish and Muslim cultural centers or university students come together for the purpose of building relationships and allies. This year more than two hundred and fifty synagogues and mosques and organizations around the world will participate in the Twinning on the weekend of November 18th-20th, so it’s a wonderful thing. In Toronto we will be holding our second Women’s Multi-Faith day and a Feed the Hungry program. (Note: This interview took place in September 2011.)
Dan: So from your point of view, a big challenge or the big opportunity is to try to understand each other better – our hopes, our desires, our traditions. Out of that will come more compassion and more understanding, is that the general philosophy?
Barbara: Yes. So often our communities don’t meet, not because we don’t like each other but because we live in different communities. My Muslim counterpart lives in Mississauga and I live in North York. We don’t run into each other and if we do, we do it one-off in work situations. We don’t come together as Jews and Muslims and Christians, to learn about each other. This is an opportunity to humanize the other, to ask difficult questions, to have courageous conversations and to really build friendships and see each other as allies. Many of the faith-based communities have large numbers of recent immigrants and they are walking in a few worlds. They have multiple allegiances.
One of the difficulties we experience is that when we reach out to a group that the general public sees as potentially the enemy or an adversary, we’re seen as disloyal to our own group. That was one of the themes of the first Women’s Multi-Faith day. How do we deal with the fear of being marginalized within our own group when we reach out to the other with a sense of compassion? How can we bridge the gap within our own group? So it’s all of those things. I think it’s humanizing each other and it’s been so rewarding. It’s so easy to make friends, much more difficult to make enemies.
Dan: (Laughing) That’s encouraging. I know you’re always hopeful about the future so I’m assuming that you’re hopeful that someday, somehow, the challenges that exist between Palestine and Israel will be resolved.
Barbara: Peace is inevitable because we all want the same thing, that’s what is so startling. We want a safe world for our children, a better world than we’ve experienced. We want economic opportunities. I’ve never met a Palestinian or a Muslim who didn’t want exactly the same thing. But I think peace can’t happen when people are looking at themselves as victims. Everybody in the Jewish-Palestinian situation feels victimized. And I think that victims give up taking responsibility for their own actions, they wait for the other person to do something or to apologize first. I think victims need to take responsibility for changing the situation. They need to stop dehumanizing each other.
Since the second Intifada in 2000, the biggest problem has been the separation of Jews and Palestinians in the Middle East. They no longer meet in each other’s kitchens, they don’t see each other, they demonize each other. They are fed political messages that are totally counter-productive. The Israeli political system…it’s impossible for that system to work. It needs to be changed. It’s the ultimate democracy where 3% of the vote will give you party status (laughs). The government has to placate small minority groups to stay in power. It’s impossible for there to be a majority government. We should look at that hard before we change our system too much. It’s a very fragmented system and also peace won’t happen until human rights respected for everybody in both groups and you’re not going to get peace without civil society and religious tolerance. Education of children is really important. I’m optimistic because the benefits of peace are so obvious.
In Israel there is social unrest because the population is realizing that it is sacrificing its own well-being to pay for the occupation and the settlements that the majority of Israelis don’t support. They want the Palestinians to recognize a Jewish state, to commit to a peaceful two-state solution. And I feel like we could achieve that in one afternoon (laughs). The boundary lines have been pretty clear for ages. Since the early 1990s it’s been clear that there needs to be a two-state solution. It needs to be based roughly on the green line and there needs to be compensation for Palestinians who were displaced. The key obstacles are the continued growth of settlements and the disconnect between Hamas and the Palestinians in the West Bank. Hamas has never recognized a Jewish state or committed to peace on the basis of 2 states. The situation is scary, but it seems doable. And in the fervor of the Arab Spring, basically people are saying “we want economic opportunities, we want a say in our government, we want peace, and we want civil society…” so why don’t we just do it?
Dan: I think it’s optimistic and I know that if you were able to get the leaders in the room for an afternoon, you’d probably take this movement a long, long way towards a peaceful resolution. So thank you very much for your time and I wish you all the best in this work and in your practice working with divorcing people and I know you do mediation with people other than divorcing people, so thank you very much.
Barbara: Thank you.
Dr. Barbara Landau is president of Cooperative Solutions. She is a psychologist, a lawyer, a mediator and a trainer, as well as an author. She has received many awards including: the lifetime title of Fellow of the Canadian Psychological Association was awarded to her for outstanding contribution to the field of psychology. In 2002, she received the Award for Excellence in Dispute Resolution, given to her by the Ontario Bar Association. In 2003 she received the Distinguished Mediator Award from the Association for Conflict Resolution. She received the long-term achievement award FAMMA from Family Mediation Canada in 2004. Barbara is a former member of the ADR section of the Ontario Bar Association, Vice President of the ADR Institute of Ontario and former board member. In 2011 she was the recipient of ADR Institute of Canada’s Regional McGowan Award for contributions to the field of ADR. Barbara is a former President of the Ontario Association for Family Mediation, Executive Board Member of the Academy of Family Mediators (now ACR), and Director of the Psychology Foundation of Canada, chairing the “In place of Violence” Committee.
Dan Couvrette is a marketing expert to family lawyers and divorce professionals. The CEO of Divorce Marketing Group, he is the publisher of Family Lawyer Magazine and Divorce Magazine.
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