In family law, the name of the game for the modern advocate is settlement; whether one is practicing within the litigation context (adversarial advocacy) or in an out of court dispute resolution process (settlement advocacy).
The adversarial advocate in the litigation system bolsters their client’s legal case as much as possible and is strategic in the presentation of that case. The adversarial advocate negotiates within the framework of leverage, positions and legal entitlements. Canada’s litigation system has become case managed and settlement oriented. This shift has split the role of the litigation lawyer into a dual role of ‘preparing for war’ while trying to ‘negotiate a settlement’. This can create tension if the lawyer focuses more on adversarial advocacy and winning the ‘war’ and the ‘battles’ along the way. The likelihood of a settlement is reduced as conflict is further entrenched; lessening any opportunity for a real dialogue or exchange of interests.
On the other hand, if a lawyer in the adversarial court system focuses too much on settlement advocacy and not enough on winning the ‘war’ or the ‘battles’ along the way, they risk missing an opportunity to strengthen the clients’ position for maximum substantive outcome. Furthermore, there is the possibility that clients will be prejudiced by inadequate interim arrangements if the lawyer does not immediately address prejudicial temporary arrangements through a motion.
In out of court processes, lawyers have a more singular role, which is to support their clients in achieving a settlement. The settlement advocate negotiates in the context of interests, mutual gain and legal rights and responsibilities. Settlement advocates work on bolstering their client’s legal case; not to persuade a judge, but to create more to work within the negotiations. These advocates work on understanding their client’s goals and concerns paying attention to process, substantive, relational and psychological interests. Settlement advocates also work on learning the interests of the spouse to analyze where the possible ‘win-wins’ might be.
When a lawyer shows up as an adversarial advocate in a settlement process, they risk unnecessarily increasing the level of conflict and jeopardizing any important relationships that are important to their client. Settlements reached (if any!) will not satisfy important non-financial and non-legal interests.
Whether one is practicing as an adversarial advocate in the court system or a settlement advocate in a collaborative practice, mediation or negotiation file, here are 10 tips and tools for effective advocacy:
If settlement, mediations and advocacy is of interest to you, OsgoodePD has upcoming programs Successful Settlements 2017: Strategies and Tactics for Civil Litigators and Successful Advocacy in Tort and Personal Injury Mediations in March.
DEBORAH GRAHAM, B.A. Hons, LL.B., Acc.FM (OAFM), is devoted to settlement work. She teaches introductory and advanced courses in Collaborative Practice and Mediation and has led workshops at the annual conferences of the IACP, the AFCC, the OAFM and the OCLF. Deborah has recently launched The Settlement Clinic to help professionals grow their settlement practices and do better work. You can follow Deborah on Twitter or check out more of her tips at The Settlement Clinic Blog.