Professionalism in an Adversarial Legal World

Adversarial - HL

As a mediator, mediation and negotiation trainer, and provider of court-connected dispute resolution services, issues of professionalism and professional ethics arise often in my work.

Although professionalism cross all legal and dispute resolution cultures and contexts, they may arise more often in the family law context, where the drivers of conflict are often personal and historical. Lawyers, dispute resolution professionals and service providers can be drawn into the emotionality and values-based conflicts that tend to dominate much of our work.

Deanne Sowter, research fellow at the Winkler Institute for Dispute Resolution, recently conducted a series of round-table discussions (in which I participated) that have resulted in an excellent series of posts on the topic. She finds that, although different FDR professionals are driven by different procedural norms, which in turn define their understandings of legal and professional ethics, there is a consistent acknowledgment that “family law ADR requires a higher ethical standard.”

The first step is for each of us to understand our own personal moral code, because that is the compass by which we will interpret the various Rules and Standards of Professional Conduct that guide us. For example, I recently helped draft the Standards of Practice for FDR Professionals for Ontario’s Family Dispute Resolution Institute of Ontario. In crafting those standards, there is no question that the values of our drafting team informed our work.

The legal profession has earned a bad reputation for adversarial negotiation. Indeed, in the family law context, some research suggests that family lawyers were, at one time, considered more adversarial than other kinds of lawyers. With the growth in popularity and influence of the collaborative law movement, and the exponential increase in numbers of family lawyers taking mediation training, it is arguable that family lawyers are now the least adversarial of their kind. This is not necessarily a good thing.

The training we take, the processes we offer, our life experiences and our own personalities together determine our standards of ethics relating to negotiation. And, presumably, the mandate to “do no harm” guides us all, at an elementary level, in all our choices, including the manner in which we interpret the Law Society’s still-mandatory duty of zealous advocacy for our clients.

In the video, I suggest that adversarialism is not, in itself, an evil. Indeed, in order to do no harm, it is sometimes essential. Ethical advocacy requires an assessment of the appropriate approach for each case and each client, and understanding what Fisher and Ury coined as each client’s “BATNA” in their seminal work “Getting to Yes”. Sometimes, an adversarial approach is exactly what is required for effective advocacy for a client. Somehow, we have come to conflate “adversarial advocacy” with “unethical advocacy”.

It is true that many of the tactics used in adversarial, competitive bargaining can seem, and be, unethical, in that they are designed to take advantage of the other party, create misunderstandings, and rely on deception of varying degrees. But competitive negotiation need not be unethical if those engaging in it are direct and transparent about the approach they are taking and avoid deceptive tactics.

I do a lot of teaching in law schools, and have coached in and judged many a negotiation competition. I find that today’s law students understand interest-based negation quite well; but they are distinctly uncomfortable with competitive bargaining, even when the facts suggest that it is the most appropriate approach for their client. It seems to me that we need to discuss these ideas much more with our students to help them understand there is a difference between adversarialism and unethical conduct.