Proposal: Family Law practitioners should be formally compelled to meet and ... - FamilyCounsel.ca - resources and tools for Family Law Lawyers

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Proposal: Family Law practitioners should be formally compelled to meet and confer with the Counsel opposite early in every case.

Other - Mar 20th

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70% in favour out of 27 votes

Dawn Nelson

Dawn L. Nelson, Barrister & Solicitor
Edmonton, Alberta

"In many courts, the parties must meet at the outset of a case to discuss various matters, including:
The nature and basis of the parties' claims and defenses.
The possibility of settling or resolving the case.
Discovery issues, including:
the preservation of discoverable information; and
a discovery plan.
A meet and confer often saves the parties time and money by resolving issues, including how they will conduct discovery, early in the case.
Most courts also require parties to meet and confer before making discovery and other motions in an attempt for parties to resolve their disputes without the need for judicial intervention."
(From Thompson Reuters Practical Law Glossary)

In family law, the law is easy, it's the emotions that make it hard. As neutral professionals, we can make a lot of headway by picking up the phone to the other lawyer very early in the process and narrowing the issues before everyone becomes entrenched and positional. As a fourth mandatory prerequisite, there ought to be a form that confirms counsel have actually spoken to each other (in person or by telephone, or videoconference, not just exchange of e-mail) and have turned their mind to the five broad categories of family law legal issues (legal relationship status, parenting, child support, spousal/partner support, and division of property) and have committed to a deadline for exchange of financial disclosure.

4 months ago

Doug Moe K.C.

Treasurer

view Arbitrator profile
Moe Hannah LLP
Calgary, Alberta

Thanks Dawn.

We should need mandatory requirements for this, but too often lawyers will not talk, they hide behind emails and letters.

Interactive communication exploring information and perspectives is where settlement can be found much more often than otherwise.

But it also means lawyers need to listen to each other, be open minded with flexible thinking and be civil.

Lawyers hide out because other lawyers are often not civil or prepared to engage productively.

This is a hard job.

4 months ago

Dawn Nelson

Dawn L. Nelson, Barrister & Solicitor
Edmonton, Alberta

This is some of the delightful correspondence that I have received on a file from "lawyer number 4" for a party who has decided every 18 months or so for the past 7 years to take my client back to court over really petty things:

Good Afternoon Ms. Nelson:

I would recommend your review the FFP information provided by the court. We are following the steps as directed. We will be filing our MIT documents shortly and you will be c.c. and served with the documents. I am not required to canvas your availability nor to I require consent to enter into the FFP process.
We will be fling our documents pursuant to the FFP protocols and they have set the timelines for us to follow.

4 months ago

1 1

Shannon L. Allison

Allison Law Office
Edmonton, Alberta

@Dawn Nelson: So how are they getting around the mandatory ADR? If they read the FFP it is mandatory that they make some attempt to resolve it.

I honestly don't know why counsel has to be rude and disrespectful. Counsel should set the standard for behavior, not reflect the behavior of some clients.

I think we have all been "prickly" at times. However, this should not override basic civility.

It is truly disheartening and why some of us hide.

1 day ago

Dawn Nelson

Dawn L. Nelson, Barrister & Solicitor
Edmonton, Alberta

@Shannon L. Allison: For some reason they applied for a waiver saying I wouldn't agree to ADR and attaching my e-mail that listed about a dozen ADR options that I would agree to and objecting only to their singular suggestion that we hire a retired Justice for $725/hour to arbitrate s. 7 expenses (that are less than $725/year for two kids!). For some unfathomable reason, that waiver was granted! Fingers crossed that the Justice approving the waiver has requested to be appointed for the MIT process so that they can slap down the OC? (Okay, okay, "slap down" isn't very professional on my part).

1 day ago

Darren Cahoon

Hamilton Cahoon
Medicine Hat, Alberta

I feel some exhaustion with increasing lists of mandatory requirements for lawyers. I recognize it's a small thing to ask the lawyers who are already doing this to keep doing it so the ones who aren't fall in line, but I also can't help but feel like better mentorship and modeling for incoming new lawyers is more appropriate than this kind of paternalism.

I learned to how to appropriately interact and communicate with opposing counsel by the modeling of senior colleagues.

4 months ago

Evan Clarke

Kahane Law Office
Edmonton, Alberta

You're absolutely right Darren. Another mandatory thing is not the answer, really. It does not solve the fundamental problem. The fundamental problem is lack of mentorship. We need good lawyers to mentor young lawyers.
It is frustrating to deal with prickly and difficult opposite counsel on family files. I've never understood why a lawyer would want to behave that way. Everything is better when you're nice.

Now that I say that, I'm wondering if I've ever been the prickly one... lol anyone can please call me out if that is the case. I always try to be collegial...

4 months ago

Shazia Umer

Umer Law
EDMONTON, Alberta

I recently attended a four-way meeting where the dynamic was extremely difficult. Opposing counsel barely allowed their own client to speak or provide information, while at the same time appearing to use the meeting to obtain as much information as possible from and about my client, despite it being a without-prejudice discussion.

It really makes me question the value of a four-way meeting when counsel approaches it this way. Instead of being a genuine opportunity to exchange information, narrow the issues, and explore possible resolution, the meeting can become unnecessarily adversarial and place significant pressure on the client.

It also puts counsel in a difficult position. You have to protect your client and respond firmly, but you do not want the meeting to deteriorate into a contest between lawyers over who can be louder or more aggressive. At the same time, when you remain measured and professional while opposing counsel dominates the discussion or behaves aggressively, the client can leave with the unfortunate impression that the other party somehow had the “better lawyer” simply because that lawyer was louder and more confrontational.

I know that effective advocacy should not be measured by who is the loudest or rudest person in the room. But this is a recurring difficulty I find with four-way meetings: the client does not necessarily see it that way. They may perceive aggressive behaviour as stronger advocacy, while measured and strategic advocacy can mistakenly be perceived as weakness.

If a four-way meeting is going to be productive, there has to be mutual respect, meaningful participation from both sides, an appropriate exchange of information, and a genuine effort to move the matter toward resolution. Otherwise, I am left questioning what purpose the meeting actually serves, particularly when it can add three or four hours of legal fees to the client's bill without meaningfully narrowing the issues or advancing the matter.

If the meeting is simply going to become another adversarial forum, without the procedural protections or decision-making function of a court appearance, we really need to ask whether the cost and pressure placed on the client are justified by what the meeting actually accomplishes.

It really makes me question the value of a four-way meeting when counsel approaches it this way. Instead of being a genuine opportunity to exchange information, narrow the issues, and explore possible resolution, the meeting can become unnecessarily adversarial and place significant pressure on the client.

It also puts counsel in a difficult position. You have to protect your client and respond firmly, but you do not want the meeting to deteriorate into a contest between lawyers over who can be louder or more aggressive. At the same time, when you remain measured and professional while opposing counsel dominates the discussion or behaves aggressively, the client can leave with the unfortunate impression that the other party somehow had the “better lawyer” simply because that lawyer was louder and more confrontational.

I know that effective advocacy should not be measured by who is the loudest or rudest person in the room. But this is a recurring difficulty I find with four-way meetings: the client does not necessarily see it that way. They may perceive aggressive behaviour as stronger advocacy, while measured and strategic advocacy can mistakenly be perceived as weakness.

If a four-way meeting is going to be productive, there has to be mutual respect, meaningful participation from both sides, an appropriate exchange of information, and a genuine effort to move the matter toward resolution. Otherwise, I am left questioning what purpose the meeting actually serves, particularly when it can add three or four hours of legal fees to the client's bill without meaningfully narrowing the issues or advancing the matter.

If the meeting is simply going to become another adversarial forum, without the procedural protections or decision-making function of a court appearance, we really need to ask whether the cost and pressure placed on the client are justified by what the meeting actually accomplishes.

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