Re-thinking “Appropriate” Dispute Resolution in the Context of Intimate Partner Violence and Family Violence

There is a common misconception in family law that alternative dispute resolution (“ADR”) methods are inappropriate in matters involving historical and ongoing intimate partner violence or family violence. Key concerns include unequal power dynamics, continuing coercive control dynamics, and the potential for survivor re-traumatization, which may result in settlements that do not adequately safeguard survivors’ interests or safety. This perspective is widely accepted by family law practitioners and Courts in Canada, as reflected in the legislation, AFCC-O Guidelines and several Supreme Court of Canada cases:

• Bill C-223’s proposed amendment to section 7.7(2)(a)of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) suggests that cases involving a risk of family violence are never  [emphasis added] appropriate for ADR – legal advisers would have the duty to encourage clients to resolve matters through ADR, “unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so, which circumstances include evidence of a risk of family violence”.[1] [proposed amendment]
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  • The AFCC-O Guidelines strongly recommends against the use of ADR methods where there has been family violence:
    
    …While co-operation between parents and voluntary agreements are usually best for children, in cases where there are on-going family violence concerns, or one parent has serious mental health or substance abuse issues, voluntary arrangements may not be appropriate. In such cases, the protection afforded by the legal process and a Court Order may be essential to address the risk of harm to children…
    
    …In some situations where one parent is perpetrating coercive, controlling violence over the other parent, dominating their partner or instilling fear, the parents should not be developing their own plan. Rather, parenting plans should be court-mandated, and the court should consider including provisions for support services for the victim and child, interventions for the perpetrator, conditions to be met regarding perpetrator’s contact with the child, and consequences for violating orders…
    
    …If parents are involved in criminal, child protection or other proceedings that raise family violence issues, this may affect participation in mediation or other family dispute resolution processes and may limit the contents of a parenting plan…[2]
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    [emphasis added]

• In Miglin v Miglin, 2003 SCC 24, the Court held “Inequalities in bargaining power rooted in the nature of the parties’ marital relationship may also have a negative impact on the negotiation of settlement agreements… a legacy of abuse may continue to colour the parties’ interactions as they work out the details of a support agreement…”[3] [emphasis added]
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• In Colucci v Colucci, 2021 SCC 24, the Court commented “Parents should be encouraged — absent family violence or significant power imbalances — to resolve their disputes themselves outside the court structure and legal rules should be clear and accessible so they may reach fair agreements.”[4] [emphasis added]
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• In Association de médiation familiale du Québec v Bouvier, 2021 SCC 54, the Court held “While family law mediators must be accredited and impartial, and have the duty to protect the integrity of the process and the rights of the participants, in practice, they will not always be able to intervene to protect vulnerable parties…”[5]

Is the Court Process truly Appropriate?

The concerns outlined above are valid and stem from the need to protect survivors from further harm. However, the Court process may in practice cause more harm to survivors:

• Court can be financially and emotionally draining, and re-traumatizing – survivors not only have to fund legal fees, but also have to repeatedly re-live their experience by providing instructions to their lawyer regarding the abuse, reviewing and approving court materials that outline and summarize the abuse, testifying and being cross-examined in court, having repeated contact with the responding party throughout the litigation, including sitting in close proximity to the responding party in court (often in person).
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• Court proceedings are inflexible in terms of process and timing. This may be inconsistent with the survivor’s recommended treatment plan or exacerbate harm.
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• There is a risk that the judge may not be trauma-informed and/or be aware of myths and stereotypes that are commonly perpetrated by the justice system.
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• Court proceedings are public, and sensitive details about the abuse may form part of the public record.
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• The Courts follow strict rules of procedure and evidence – while the Courts have acknowledged the family violence allegations are notoriously difficult to prove [6], the onus remains on the survivor to prove tort claims on a balance of probabilities.

Common misconceptions about the appropriateness of ADR in cases where there is family violence or intimate partner violence stem from the perception of ADR processes in the traditional sense. For instance, negotiations or mediations where the parties are in the same room or arbitrations where there is direct cross-examination by the parties if they are self-represented. However, these methods are not immutable, they can be adapted.

Feminist and Trauma-Informed Approaches to ADR

In their article “Women Talking: An Alchemy for Feminist Alternative Dispute Resolution”, Jennifer Orange and Sabrina Khela advocate the use of a feminist approach to ADR, defined as follows:

A feminist ADR practice prioritizes the women’s voices, meaningfully considers the interests of the women who are parties to the dispute, enacts substantive procedural justice by giving the parties agency to select and modify procedures, and positions women as active agents in structuring the dispute resolution and decision-making process.[7] [emphasis added]

Similarly, a trauma-informed approach to ADR involves mediators, arbitrators and family law practitioners adapting ADR processes in various ways to minimize harm to survivors and to empower them through the power of choice and by giving them control over the process.

Broadly speaking, common techniques to address the above concerns and make ADR processes more sensitive to the needs of survivors include:

• Have the survivor and the responding party in separate rooms during the entirety of the process. Negotiations can be on paper and/or through counsel, and mediations can be conducted by way of shuttle mediation.
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• Asynchronous participation to minimize or eliminate direct contact. Submissions can be written as opposed to a direct confrontation, entry and exit times can be staggered and mediator can be an intermediary for questions or exchanging settlement proposals.
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• Ensure flexibility and comfort for the survivor as much as possible. Regularly check in with the survivor, take breaks where needed, and recommend the survivor make an appointment with their therapist as needed before, during and after the ADR process. Another important aspect is to warn survivors that certain steps or correspondence may be triggering so they are able to have support systems in place and prepare themselves before reviewing materials.
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  Where possible, have the ADR process take place virtually. It is often important for the ADR process to take place in an environment that the survivor can control or in the survivor’s “safe space”. If needed, the survivor may attend the ADR process with a support person.
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• Choose trauma-informed mediators and arbitrators. These practitioners are trained in trauma responses and are aware of common myths and stereotypes surrounding survivors.

The Importance of Control, Autonomy and Empowerment

"Trauma creates change you don't choose. Healing is about creating change you do choose."[8]

The legal process may be the first time that survivors will have had a choice or autonomy over their relationship with the other party. Through adapted ADR processes, survivors maybe better able to safely and effectively navigate their matter on their own terms, without having to conform to the restrictions of court. This can be  powerful in restoring the survivor’s agency.

ADR processes also have the benefit of empowering survivors in allowing them to craft their own remedy – which can be another important step in restoring the survivor’s autonomy and inholding the responding party accountable.[9] Remedies that may assist in the survivor’s recovery are often unavailable in the Court process – an apology, acknowledgment of harm and/or participation in specific rehabilitation programs.

Family and intimate partner violence fundamentally changes the dynamics of ADR – but it does not and should not automatically preclude all forms of ADR. With the right safeguards, some ADR processes may not only be viable, but in certain cases, preferable to litigation. The aim is not to fit survivors into a particular process, but to design processes that meet survivors where they are – prioritizing their safety, dignity, and meaningful participation at every stage.

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[1] BillC-223, An Act to amend the Divorce Act, 1st Sess, 45th Parl, 2025 (second reading 4 February 2026).

[2] Association of Family & Conciliation Courts-Ontario, “Parenting Plan Guide, version2.0” (2021) at 6, 46-47, online (pdf): AFCC-Ontario <https://afccontario.ca/wp-content/uploads/2025/07/AFCC-O-Parenting-Plan-Guide-Version-2.0-December-2021-.pdf>.

[3] Miglin v Miglin, 2003 SCC 24, at para 212.

[4] Colucci v Colucci, 2021 SCC 24, at para 69.

[5] Association de médiation familiale du Québec v Bouvier, 2021 SCC 54, at para 155.

[6] Barendregt v Grebliunas, 2022 SCC 22, at para 144.

[7] Jennifer A. Orange & Sabrina K. Khela, “Women Talking: An Alchemy for Feminist Alternative Dispute Resolution” (2025) 20:1 JLE 55.

[8] Michele Rosenthal, Trauma Recovery Specialist, Author of "Your Life After Trauma: Powerful Practices to Reclaim Your Identity".

[9] James Ptacek & Loretta Frederick, “Restorative Justice and Intimate Partner Violence” (January 2009), VAWnet: The National Online Resource Center on Violence Against Women.

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