Family Law ADR Requires a Higher Ethical Standard

Professionalism & Ethics in Family Law: The Other 90%, Part III – Initial Observations: family law ADR requires a higher ethical standard.

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

By Deanne Sowter*

I have hosted six round table discussions on the topic of ethics and professionalism in family law ADR, with twenty-eight participants. The participants have been practicing for between nine and thirty-five years; 68% were female and 32% were male. There were two discussions with mediators, two discussions with collaborative lawyers, and two discussions with settlement focused negotiators. Each discussion had on average five participants. The participants did not know in advance who else would be taking part in the discussion. They were each given the questions one week in advance. I defined professionalism as behaviours that are governed by the Rules of Professional Conduct and various voluntary codes and standards. I focused on ethics as behaviours that triggered the participants own moral compass, and ethical dilemmas that had competing courses of conduct or underlying competing values. I steered the conversation away from dilemmas that are easily resolved by the various codes. The results will be comprehensively summarized in the final paper. In the meantime, I can offer the following initial observations about what shapes behaviour in each process.

There was some struggle with the term ‘unethical’. A few participants had a hard time looking away from the Rules of Professional Conduct, and found their own view on what was distasteful or morally unacceptable to be almost irrelevant. Other participants perceived ‘unethical’ as suggesting something that was morally wrong, or as though it included an element of dishonesty. When challenged with whether or not certain behaviours rose to the level of being unethical, sometimes they found the term too extreme and said it wasn’t necessarily unethical, but that it wasn’t ‘right’ or it was poor practice. Arguably, poor practice or not practicing well are unethical behaviours, given the responsibilities of the profession. Some participants thought that family law requires a higher standard of what constitutes ethical behaviour, given the personal nature of the work and the potential impact on third parties, such as children.

One question that I asked all three groups is what constitutes unethical behaviour by a lawyer or mediator in that particular process. I tried not to provide examples of what I thought was unethical behaviour and instead I let the group steer the conversation – coming up with their own examples of unethical behaviour, and the norms within that process. Three very different sets of conversations and norms emerged, dictated entirely by the process. Some of the unethical behaviour discussed would be unethical in any process; however, most of the participants agreed that extreme unethical behaviour is rare. Dilemmas that fall into the ‘grey zone’ or dilemmas that are the ‘hard ones’ are more typical.

Negotiation

In family law negotiation, it was suggested that an atmosphere of fair and respectful behaviour is required given the personal nature of the work. Behaviour that challenges that atmosphere is unethical. Creating a tone of bullying or being overly aggressive, where people experience duress or where they are treated unfairly in the process, all cross over the line into unethical behaviour. Further yet, if counsel trust one another, they can define a process that may heighten what is expected of each other, and behaviours outside of that mutual trust become unethical as a result. There was also a sense of responsibility for what a lawyer brings to the process, in that they have a responsibility to be aware and mindful of their own role in the process. Some thought that the job requires a degree of self-reflection in order to be sure the lawyer’s own ego or personal perspective is not becoming co-mingled with the issues, creating harm rather than facilitating a solution.

In contrast, the lack of consequences for a lawyer’s unethical behaviour was a big concern for some negotiators. Some lawyers view their role as that of the zealous advocate and their job is to take their client’s instructions to the full extent possible, even if the instructions are distasteful or unethical, provided it does not breach the Rules. Their own ethical discomfort was almost irrelevant. Others disagreed, having felt a tension between their own moral compass and the Rules. There was a recognition by some that advocacy in negotiation has moved away from the zealous advocacy model, and that it is part of the lawyer’s job to ‘reality check’ with their client, sometimes doing more work with their client than against the other side, to bring their client to a place of reasonableness. For some, it was unethical not to ‘reality check’ with their client. Some of the unethical behaviour discussed but not always unanimously agreed to includes: using children as a bargaining chip; improper threats (ie. threatening criminal proceedings or threatening litigation knowing the other side does not have the financial resources or stomach for litigation); chronic delay; and, how joint settlement recommendations are handled – where the lawyers trust each other and wish to collaborate on a settlement recommendation to their clients.

Two sources provide the framework for defining behaviour in negotiation: (1) Professionalism – Rules of Professional Conduct, and Court (i.e. if the negotiation failed and the behaviour rose to the level that would impact costs); and, (2) Ethics – the moral compass of the individual lawyer, and their relationship with opposing counsel and the bar.
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Stay Tuned!

In my next blog post I will provide a brief summary of my conclusions as they relate to both collaborative law and mediation.

 

*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.