Gary Joseph | June 2022

This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.

I am a big fan of AJ Jakubowska. I have known her for years and believe her to be an excellent lawyer and mediator. However, being a fan does not mean agreeing with everything said and I most certainly take issue with AJ's most recent article ("Tips for undermining a mediation even before it starts") in this publication. Within her "tongue in cheek" article dealing with how to undermine a mediation is the following statement "advocacy has no place in mediation." What? Really? AJ, I passionately disagree with this statement.

Advocacy is defined as the art of speaking on behalf of or in support of another person. As a lawyer, especially a family law, advocacy is at the heart of what we do. We speak on behalf of our clients. We support our clients through the horrible process of relationship breakdown. As I read her article, AJ suggests that she would prefer mediation without counsel. Lawyers who dare to assert within the mediation process a legal position that may be entirely justified, to AJ, have no place in the process. Does mediation mean simply joining hands, singing together and making nice?

AJ you know that I am a big fan of mediation and successfully engage in it when appropriate but here's a surprise. - there are indeed principled and well-supported legal positions that are fully worthy of civilized discussion in mediation (I know you know this). There are clients who come to mediation with well-prepared (not necessarily aggressive) mediation briefs that are well-supported and that should be part of the process. A strongly articulate legal position is not a threat.

I find family lawyers today, especially young family lawyers, almost embarrassed to aggressively assert a legal position in support of their client. Of course, there is the otehr group of family lawyers who repeatedly turn their cases over to mediation to allow the mediator to figure out a case too complex for that particular lawyer. This latter group of fmaily lawyers practise what I call lazy lawyering and is an increasing sample within our bar. Put parenting matters aside for the moment within this arguement. There remains well established legal precedent that can and should be relued upon in support of a client's posiition. That is part of your job as your client's advocate. You need to figure it out before mediation not within mediation. Why taking principled legal positions is now viewed as antithetical to successful mediation is beyond me (perhaps an overstatement here but certainly the tone of AJ's article suggests that to me).

Am I overreacting? I am sure that AJ will tell me so. Will I get the usual stream of "hate mail" accusing me of being too litigious? Yes, for sure. I really do care about my clients and have genuine empathy for their suffering in relationship breakdown, but we do the client no favour by compromising their legal positions. (Again, I am not talking about parenting cases.) I have seen far too many cases of "buyer's remorse" where clients move away from the pain of the breakdown and seriously question the judgement of their counsel in allowing them to compromise significant claims uncessarily. Guess what, OMG, we still have courts to decide disputed cases. Justices will do their job when called upon. Counsel do your job! Do everything reasonably possible to settle your cases. Discuss and recommend ADR when appropriate but also be strong enough ot recommend against compromise when compromise is not the best outcome for your client and the claim is being pursed on a principled and emotion free basis.

I know I repeat myself. A sure sign of age but remember I do not write to be popular. I write to express my views and hopefully contribute to dialogue necessary to serve our clients better ... honest!

Gary S. Joseph is the managing partner at MacDonald & Partners LLP. A certified specialist in family law, he has been reported in over 350 family law decisions at all court levels in Ontario and Alberta. He has also appeared as counsel in the Supreme Court of Canada. He is a past family law instructor of the Ontario Bar Admission course and the winner of the 2021 OBA Award for Excellence in Family Law.

Press the button below to read the PDF version, or directly on The Lawyer's Daily.