Reclaiming Advocacy Nancy Cameron, Q.C.

Definition of advocate One that pleads the cause of another before tribunal or judicial court One that argues for, defends, maintains, or recommends a cause or proposal To plead in favour of, defend by argument before tribunal or judicial court Support or recommend publicly

Traditional advocacy: Process components The disputants no longer dialogue directly about the issues Debate happens between the advocates

Traditional advocacy: Debate between the advocates

Debate between the advocates Listening is less important than speaking Assumes a third party decision maker The third party decision maker is removed from the parties’ experience Any opportunity for greater understanding between the disputants themselves is lost

Definition assumes a third party decision maker

Process or outcome? Advocacy traditionally defined in process terms to persuade for a particular outcome How do we re-define advocacy when the task is to reach a mutually agreed upon solution?

Re-defining Outcome Meet the highest prioritized needs of each client Protect and safeguard children’s well- being and security Maintain (or if necessary, repair or create) working relationship between clients

Outcome Practical enough for the clients to be able to live with and carry through Informed enough by the legal backdrop to withstand judicial scrutiny Do no harm

Role of the Advocate in a self- determination model Advocacy around process components Advocacy around how we work through substantive components (includes education)

Advocacy in the Collaborative Process Working individually with my client Building a good relationship with the other advocate Teamwork Process facilitation Self awareness so that I do not become the problem Reconciling the tension between obligation to the process and obligation to the client

Advocacy and process components Because process is so critical and so different in this model, must pay particular attention to process components This includes, from the outset Screening Education about process options Informed consent

Informed decision making About process choices About the disqualification agreement – what this means for the client and for the lawyer About articulating one’s own needs in the process About willingness to move to finality; process readiness

Once my client has chosen collaborative process Assist her to articulate and prioritize her needs Assist him in analyzing and sorting through conflicting goals Educational role

Giving legal advice Educating about children’s needs through the separation and divorce process Educating about adult pathways through divorce Normalizing behaviour Setting realistic expectations

Legal advice Opinions about: the application of the law to the facts the probable outcome if the facts were adjudicated by a third-party decision-maker the range of possible settlement outcomes considering the legislation and case law the range of possible settlement outcomes considering the highest prioritised settlement needs of each spouse

Legal advice Discussions about: what the relevant legislation sets out, with some clarification as provided by case law the interplay between process and substantive law process choices and likely consequences of different process choices process choice, related cost (including financial, emotional and relational) and outcome variables

Legal advice An acknowledgment that law is a vital and changing entity the diversity of individual facts limits the number of hard and fast rules A backdrop discussion to return to as a benchmark for fairness

Directive component Self-awareness Empathy combined with honesty A resolution that works for both parties Communication Readiness BATNA and WATNA

Building a good relationship with the other advocate How do we negotiate process with our lawyer colleagues? If this is a flexible process built on client needs, how much orthodoxy do we build in? How do we reconcile process demands with advocacy?

Teamwork Lawyers tend to be very individualistic, new for us to work as part of a team Need to watch out for the possibility of entrenched teams Either lawyer client or lawyer/coach/client Need to be a team member and at the same time be an advocate

Process facilitation Co-managing the four ways Modeling behaviour Freedom to critique each other’s working relationship

Independent, objective criteria Identifying when these are needed Building collaborative process to gather these

Personal role Watch my knee jerk reactions How do I respond to positional behaviour in my colleague? Care that I don’t become the problem

Reconciling the tension between: Obligation to collaborative process and Obligation to our client

Values Change in how we think about and articulate our underlying values In this role, we are no longer cloaked by the myth of value neutrality With the change in our role as advocate, our underlying values are more obviously influential

Process values Can we develop a process that is not culture or socio-economic specific?

Values and assumptions about lawyer-client relationship Empowerment vs. protection Paternalism vs. self-determination My values as a lawyer and as a person vs. my client’s values Being aware of my values Articulating this to client

Substantive values Working with clients to build principals that underpin decisions which may be different from the principals that underpin the substantive law Watching my reactions when my values clash with my client’s or with the other party’s values

A New Definition of Advocacy To honour client process choices and agreed upon values while: Being steadfast in providing comprehensive support to the client Assisting the client to understand and articulate his short and long-term interests and goals, and Offering the necessary support and leadership to enable her to resolve disputes.