Advocacy in Non-Adversarial Family Law: A Recommendation for Revision to the Model Code

Windsor Yearbook of Access to Justice, Forthcoming

46 Pages Posted: 10 Feb 2019

See all articles by Deanne Sowter

Deanne Sowter

University of Calgary - Faculty of Law; The Winkler Institute for Dispute Resolution

Date Written: January 29, 2019

Abstract

Family law is evolving towards non-adversarial dispute resolution processes. As a result, some family lawyers are representing clients who are trying to reach settlements that recognize their interests, instead of just pursuing their legal rights. By responding to the full spectrum of client needs, lawyers are required to behave differently than they do when they are representing a client in a traditional civil litigation file. They consider the emotional and financial consequences of relationship breakdown – things that are not typically within the purview of the family law lawyer. They objectively reality check with their client, and they approach interest-based negotiations in a client-centric way. These lawyers view their role as that of a non-adversarial advocate, and their client as a whole person with interests that are not just legal. This paper draws on an empirical study involving focus groups with family law lawyers, to argue that the Federation of Law Societies of Canada, Model Code of Professional Conduct, needs to be updated to incorporate non-adversarial advocacy. The lawyers in the study viewed non-adversarial advocacy as being responsive to client needs, and in the interest of the client's children. This paper draws from the study to establish what constitutes non-adversarial advocacy and then it presents a proposal for revising Rule 5 (Advocacy) of the Model Code.

Keywords: Legal Ethics; Family Law; Alternative Dispute Resolution; Legal Profession; Collaborative Law; Negotiation

Suggested Citation

Sowter, Deanne, Advocacy in Non-Adversarial Family Law: A Recommendation for Revision to the Model Code (January 29, 2019). Windsor Yearbook of Access to Justice, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3325584

Deanne Sowter (Contact Author)

University of Calgary - Faculty of Law ( email )

Murray Fraser Hall
2500 University Dr. N.W.
Calgary, Alberta T2N 1N4
Canada

The Winkler Institute for Dispute Resolution ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

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