Using a domestic violence screening report

Screeners will often use one or more of the tools listed in the section on required training. It is desirable that screeners be chosen who have experience in dealing with issues of domestic violence and power imbalances.

The screening report will normally recommend in favour of or against arbitration. It may also recommend arbitration if certain safeguards are put in place, such as that the parties not be left alone together or not arrive or depart together or that special procedures for giving evidence be used.

If the results of the screening suggest that arbitration not be used, steps may be required to provide for the safety of the party found to be subject to abuse.

As a matter of principle, an arbitrator does not meet with the parties separately or get information from one that the other does not know about. An exception to this is the new screening requirement, which requires the arbitrator to receive a report that is not shared with both parties. The report may be used only to determine suitability for arbitration and safety issues. The report is not to be used to decide any issue in the arbitration, including credibility of the parties.

A number of strategies may be employed to prevent any perception of partiality on the part of the arbitrator:

  • At the time the arbitration agreement is being negotiated, the parties could ensure or the arbitrator could ask that it include a specific acknowledgement that the arbitrator will see screening reports of each party for domestic violence and power imbalances, and this does not affect the ability of the arbitrator to be neutral.
  • The parties or the arbitrator could specify that the screening report address only the parties' fitness for arbitration only and answer the question: should this dispute proceed to arbitration or not? Under what safeguards? The back-up information need not be provided unless the arbitrator calls for it.

Since there is no prescribed screening process and no prescribed screening report, arbitrators have considerable flexibility in how this step is undertaken.

While the arbitrator will normally follow the recommendations in the screening report, he or she is not legally bound to accept them.

In particular, parties may choose to continue the arbitration even if the screening report recommends against it. However, there is considerable risk in such a case that the eventual award may be hard to enforce if the vulnerable party argues that she or he continued the arbitration unwillingly.