Family Law ADR requires a higher ethical standard, Part II

Professionalism & Ethics in Family Law: The Other 90%, Part IV– Initial Observations Continued…

This post is the final instalment in a series of posts by Deanne Sowter, which explores the Ethical and Professionalism dilemmas within Family Law. This post concludes her most recent findings. You can find her first post here, her second post here, and her third post here

By Deanne Sowter*

In my last blog post, I summarized some of my observations from six roundtable discussions with mediators, collaborative lawyers and negotiators, on the subject of ethics and professionalism in family law ADR. Below is a continuation of that summary, specifically my initial conclusions from the mediation and collaborative law discussions.

Mediation 

For some family law mediators (the participants were all lawyer-mediators), the mediation agreement set the basic parameters of the process, and behaviour outside of those parameters may be ‘unethical’. For others, unethical behaviour was defined to be more personal but generally circled back to the process that had been sold to the client. Behaviour that challenges that process, or ultimately leads to a process that is not what the client had ‘signed up for’ was considered unethical. Objective unethical behaviour such as: lying, misrepresenting information, or using the threat of litigation to steer the parties toward settlement, were included in this category. For some, maintaining an ethical process requires a strong commitment to personal reflection and a deep understanding of their own biases. It also requires an awareness of the impact of their power as a mediator on the decisions made by the spouses. As a result, understanding their role as a mediator, and their own ability, knowledge and experience, is tied into what is understood to be subjective unethical behaviour.

Two sources provide the framework for defining behaviour by the mediator: (1) Professionalism – voluntary standards set by various organizations within the profession, and the mediation process (often set by the mediation agreement); and, (2) Ethics – the moral compass of the mediator.

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Collaborative Law

In collaborative law, the participation agreement and protocols designed by the practice group and between counsel dictate what behaviours are expected. When a behaviour breaches those expected norms it may be either ‘unethical’ or ‘uncollaborative’ depending on the nature of the behaviour. Uncollaborative was unanimously distinguished as a type of behaviour that was detrimental to the process. It is set by the practice groups, protocols, training and participation agreement. Norms are established within a collaborative community that provide for expected collaborative behaviour. Behaviours that breach these norms are uncollaborative and will be remedied in the debrief amongst the professionals, to bring the professional back in line with expected norms. Examples of uncollaborative behaviour include: showing a draft separation agreement to a client prior to counsel (although one person thought this was unethical because it gives the client an advantage); doing something out of sync with an interest based process; not letting the clients decide; how a litigation consult is managed could be uncollaborative; and, adversarial advocacy. Uncollaborative behaviour can also be so extreme that it becomes unethical. Examples of unethical behaviour include: using the process to delay; and, not showing good faith. Collaborative law creates a bubble of trust around the professionals, and breaching it is unethical.

Zealous advocacy was considered uncollaborative or unethical depending on the severity, and instead it has been replaced with settlement advocacy, which shifts in strength depending on the client’s needs. Settlement advocacy requires reality checking and a consideration of interests, not just the legal model. Lawyers work towards empowering their clients to make informed decisions.

Three sources provide the framework for defining behaviour in collaborative law: (1) Professionalism –the Rules of Professional Conduct and collaborative standards; (2) Ethics – the moral compass of the individual lawyer; and, (3) Collaborative –the local collaborative community.

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The Spirit of Settlement 

ADR practices are unregulated and ‘new’; however, we are reaching the point where they have been around long enough for norms to emerge. There is a particular spirit in a settlement focused practice that permeates how most of the participants viewed their role and their understanding of what was ethical in that process. It is an intangible component, not defined in the Rules and not necessarily taught, but present and powerful nonetheless. Overall, regardless of the process, there

was a consistent acknowledgement which presented itself in various ways, that family law ADR requires a higher standard of ethical behaviour.

Finally, an enormous thank you to all of the participants for their honesty and time! It is obvious to me that there are a lot of passionate professionals who are practicing family law and who are working hard to ensure that the process they promise to their clients is delivered in an ethical way.

 

*Deanne M. Sowter, BFA (York), MFA (American Film Institute), JD (Osgoode Hall Law School), is the 2015/16 OBA Foundation Chief Justice of Ontario Fellow in Legal Ethics and Professionalism Studies, and a Research Fellow at the Winkler Institute for Dispute Resolution. Ms. Sowter practices Family Law, specializing in negotiated settlements. Ms. Sowter summered and articled at a full service Bay Street firm, and prior to becoming a lawyer Ms. Sowter worked in the film industry for 13 years. Ms. Sowter’s research interests lie in the areas of family law, professional ethics, and alternative dispute resolution.