The point of mediation is apparently in the eyes of the beholder | AJ Jakubowska

By AJ Jakubowska

Law360 Canada (June 22, 2022, 2:34 PM EDT) --
AJ Jakubowska
AJ Jakubowska
I thank my esteemed colleague, Gary Joseph, for his generous comments at the beginning of his piece entitled “Yes, advocacy and mediation can exist together” (June 8). In it, he was responding to my jaunty tips for undermining mediation even before it starts, appearing earlier in this publication (June 6). I am replying not because it is my nature to insist on having the last word. Rather, I am interested in continuing this friendly debate and I invite others, as I am sure does Gary, to contribute further ideas to the topic.

The idea that we, lawyers, have only two buttons, namely, “aggressively asserting a legal position” (paraphrasing my friend’s language) or “lazy lawyering” is questionable at best. In my view, this does not give us, family law lawyers, enough credit. There is oh so much daylight between those two positions. We are not only encouraged to walk into that daylight by the recent amendments to our family law legislation, we are in effect commanded to enter that space.

As my friend well knows, thousands of cases were settled in Ontario every day well before these amendments, and without a court proceeding ever having been commenced. Why? Precisely because many, in fact most, lawyers have more than two buttons.

For this cohort, and I do include myself in it, litigation is not the default approach when a new client walks through my (now) virtual door. Litigation is the last resort. This is not a sign of lazy lawyering and does not equate with unreasonably compromising our clients’ rights. Many cases are settled daily through productive dialogue between counsel, at four-way meetings, based on a collaborative practice model and so on. There are strong and effective alternatives to aggressive advocacy/litigation on the one hand or leaving it to the mediator “to figure out a case” on the other.

I take respectful issue with several other comments in my friend’s piece but given length limitations, I will chime in on only four:

1. I have written several mediation-themed pieces for The Lawyer’s Daily. I reread them all, and I cannot find any explicit or implicit statement in them suggesting that I would prefer mediation without counsel. All those pieces were written with my (particularly more junior) colleagues in mind, and anticipated their involvement. I have also voiced openly my preference for evaluative/directive mediation, at which model many classical mediators scoff and they are certainly entitled to their views. That approach can only be taken when parties are represented by counsel.

And no, I do not light scented candles during the sessions and sing “Kumbayah.” I do try to inject structure and order into the dialogue and if that is my friend’s definition of “making nice,” so be it.

2. While I agree with Gary’s technical definition of advocacy, he knows having read my piece that I was using the word as referring to how positions are taken in the context of a court proceeding. The three points I made in my piece confirm this.

A lawyer can absolutely protect their client’s interests and speak effectively on their behalf without being aggressive. My friend’s very definition of advocacy does not include that word. It is the “art of speaking” — there is no mention of doing so assertively or aggressively.  All of my mediations begin with principled legal positions. The power of mediation is to give the parties a forum in which they can arrive at consensus based on a potential, informed compromise of those legal positions.

3. I am not a mediator who believes every case can be mediated to settlement. Many mediators I know do — and we actively disagree on this point. I have been very vocal about this, both in person and in writing. There are family disputes that truly require court intervention and no amount of dialogue, not even with the help of an experienced mediator, will calm the storm. This is particularly true for cases involving children or a vulnerable party.

Lastly, if I am asked to accept my friend’s premise that advocacy and mediation can co-exist, I ask him the following question: At whom is this advocacy directed? Again, the mediator is not a decision-maker. I believe my friend will agree with me on that.

AJ Jakubowska is a family law lawyer, family mediator and SANE SPLIT podcaster. She practises in Newmarket, Ont.

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