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Titles/Names and regulated professions: What’s all this fuss about? | Rachel Birnbaum

Thursday, July 08, 2021 @ 2:48 PM | By Rachel Birnbaum

Rachel Birnbaum %>
Rachel Birnbaum
I have read with great interest the articles by Gary Joseph in The Lawyer’s Daily relating to family law mediation (“Mediation: The unregulated profession” and “Ontario family law needs a college of mediators”). I have also read the three related articles in The Lawyer’s Daily (“Family mediation: The self-regulated profession;” “Ontario family mediation: World class excellence;” “Holistic standards for unregulated profession of mediation”). I would not characterize the latter three articles as “rebuttals,” but rather, providing important information that sheds some light and context to those who may be confused about why there is such a debate still going on all these years later.     

I am not a mediator. I am a proud social worker and a member of the Ontario College of Social Workers and Social Service Workers (OCSWSSW), a regulatory college that is NOT mandatory in Ontario. I am also a past president (2005-2009) of the OCSWSSW. It is true that a social worker or social service worker who holds themselves out as a “social worker” or “social service worker” cannot do so without being a member of the OCSWSSW as those “titles” are protected in Ontario.

However, anyone can still practise social work or social service work in Ontario — just change your title/name despite your academic qualifications as a social worker or social service worker. Many government agencies such as child welfare continue to hire professionals and use many different titles/names (e.g., child welfare worker, intake worker, family service worker) and are not obligated to be members of the Ontario College of Social Workers and Social Service Workers. However, that is a debate for another time.

Mediation is an important practice in Ontario and across Canada. It is even more important given the changes to the Divorce Act that focuses our collective attention on dispute resolution. As a social worker who regularly refers clients to mediation, it is essential that only qualified mediators who belong to a regulatory college (e.g., Law Society of Ontario, OCSWSSW) or the many approved excellent mediation organizations (e.g. OAFM (Ontario Association for Family Mediation), FMC (Family Mediation Canada), FDRIO (Family Dispute Resolution Institute of Ontario)) practise mediation.

It is also important that mediators identify and respond to family violence issues. The Department of Justice, Canada has recently developed a toolkit, “Identifying and Responding to Family Violence for Family Law Legal Advisers.” Most if not all mediators across Canada can now access this toolkit and education and evaluation is ongoing. Canada is certainly a leader in this area.

I would only add that Canada could show even more leadership by making family violence screening mandatory in each and every mediation and/or arbitration dispute. Right now it is a bit of hit and miss despite best efforts being made.        

I would argue that it is not helpful or useful to debate about who can or cannot practise mediation or whether a college of mediators will resolve the problem that all of these good writers have addressed. There is no simple solution or panacea. Rather, I suggest we focus our collective responsibilities on how to help family law clients work through “their” problems. Mediation is certainly one tool among many that can be offered to family law litigants who have the necessary problem-solving skills and ability to compromise.  

At the end of the day, there remains a banquet of issues that we need to focus on, such as the ever-growing rise in self-represented litigants and access to justice concerns that have only complicated matters and have led to a significant backlog in hearing important matters — children involved in parental disputes. While debating about whether a college of mediators will help resolve access to justice concerns is really a non-starter, being a member of any regulated profession is more important as clients must be protected. Having said this, the vast majority of regulated professionals understand their duties and obligations each and every day and carry them out honourably.

Let’s work together collaboratively to make family law and help family law litigants resolve issues in the interests of children.

Rachel Birnbaum, Ph.D., RSW, LL.M. is a professor, cross-appointed to social work and childhood and youth studies, King’s University College at Western, London, Ont. She frequently collaborates with colleagues in law, social work and psychology on family justice concerns in family law.

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