LAWYERS AND THE DUTY TO NEGOTIATE

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1 LAWYERS AND THE DUTY TO NEGOTIATE R. Bradley Hunter Q.C. Hunter Peterson Deagle LLP Barristers, Solicitors and Collaborative Lawyers # Victoria Avenue Regina, Saskatchewan Canada S4P 3X2 Telephone: (306) Fax: (306)

2 2 LAWYERS AND THE DUTY TO NEGOTIATE The growth of collaborative law and the integration of mediation into the legal system are both clear recognitions of the central role negotiating settlements takes in the day-to-day role of lawyers. Settlement has always been the fundamental way of solving legal disputes but it was always done in the shadow of the courts. The advice to give to clients is always premised on what the judge might do when realistically the client would never meet a judge let alone have that judge make a final decision as to the rights of the parties. Trials have always been rare. The traditional legal form of negotiation has historically been positional bargaining. Positional bargaining essentially has both parties adopt their best case scenario as their opening position. The parties attempt to out muscle each other with respect to the negotiation. Prior to the pretrial conference, this involved running a case up to the edge of trial and the most frequent spot for an intractable dispute to be settled would be on the proverbial courthouse steps. The traditional law school education assumed that the better legal argument would win the day in any negotiation and lawyers would both attempt to settle based upon a likely legal outcome. However, both sides were often in the dark about the actual position of the other party, the actual evidence a party held and whether that party would actually proceed to trial. The reality has been in jurisdictions across North America that fewer than 5% of all civil law disputes including family disputes end up in trial with the actual number closer to 2%. The following chart sets forth the Saskatchewan experience in family law over the last five years: Total Family Law Cases Pretrials Total to Year Trials Trial , % , % , % , % , % Source: Court of Queen s Bench Saskatchewan

3 3 The shifting duty to advise clients about alternatives is quite evident in the family law field in Canada. The following is chronology of major developments: 1968 Divorce Act Enacted including a requirement that lawyers advise about reconciliation; 1970s family mediation starts to become widespread; 1986 Divorce Act amended to include a requirement that lawyers advise about reconciliation, mediation and settlement; late 1980s the Saskatchewan pretrial conference is developed by Judge Milliken; January 1, 1990 Stu Webb starts practicing collaborative law; 1991 Saskatchewan family law statutes amended to include mandatory advising parties of mediation; mediation screening program in family law; 1994 Mandatory civil mediation; June 2001 Collaborative Lawyers Saskatchewan Inc. Is incorporated; 2001 mandatory parent education enacted; 2012 collaborative law requirement added to family law statutes in Saskatchewan; 2012 new Code of Professional Conduct adopted specifically requiring competency in alternative dispute resolution and recognizing the lawyer s duty to negotiate; 2013 new Rules of Court requiring extensive efforts in settlement before pretrial conference. It is clear from all of these developments over the last 45 years that the negotiation role of a lawyer is becoming front and center. This recognizes the reality that the lawyer s primary duty is negotiating settlement rather than running Superior Court trials. This shift in emphasis from the classical English barrister to a negotiation role merely reflects what lawyers have been always doing. However, the sophistication of our ability to negotiate has improved dramatically. Code of Professional Conduct 2012 Effective July 1, 2012 a new from Code of Professional Conduct came into force. That code arose from a significant effort on the part of the Federation of Law Societies attempting to bring together the many changes that it happened in the expectation of behavior of lawyers. The new Code specifically sets forth the various requirements of the lawyer and even defines what it means to be competent. The very definition of competent lawyer requires that lawyer to be adept at using alternative dispute resolution processes:

4 (1) In this rule Competent lawyer means a lawyer who has and applies relevant knowledge, skills and attributes in a manner appropriate to each matter undertaken on behalf of a client and the nature and terms of the lawyer s engagement, including:... (c) implementing as each matter requires, the chosen course of action through the application of appropriate skills, including:... (v) negotiation; (vi) alternative dispute resolution; Further, the Code makes a basic part of the service and advice we give to clients to make recommendations concerning alternate dispute resolution: 2.02 (1) A lawyer has a duty to provide courteous, thorough and prompt service to clients. The quality of service required of a lawyer is service that is competent, timely, conscientious, diligent, efficient and civil. Examples of expected practices The quality of service to a client may be measured by the extent to which a lawyer maintains certain standards in practice. The following list, which is illustrative and not exhaustive, provides key examples of expected practices in this area: (j) informing a client of a proposal of settlement, and explaining the proposal properly; Encouraging Compromise or Settlement 2.02 (4) A lawyer must advise and encourage a client to compromise or settle a dispute whenever it is possible to do so on a reasonable basis and must discourage the client from commencing or continuing useless legal proceedings. Commentary A lawyer should consider the use of alternative dispute resolution (ADR) when appropriate, inform the client of ADR options and, if so instructed, take steps to pursue those options. Understanding ADR, being able to effectively function in an ADR environment, and having ADR skills are basic core competencies for every lawyer. Furthermore, the ability to used interest-based negotiation skills gives a lawyer a significant advantage in any negotiation over the traditional positional approach. Any lawyer who thinks that using a positional approach is the only way to negotiate leaves their client at a severe disadvantage.

5 5 THE NEW RULES 2013 Furthermore, the new rules for the Court of Queen s Bench which come into effect in 2013 further expand the duty to negotiate in all types of civil litigation at Queen s Bench including family law. Although the role of the pretrial conference has been understood for many years and the quality of the Saskatchewan Pretrial System is superior to anywhere else in North America the court has seen fit to explicitly set forth the expectation of counsel prior to pretrial and the expectation of the purpose of the pretrial in the new rules. The relevant rules provide as follows: Obtaining a date for pre-trial conference 4-11(1) On the close of the pleadings, the parties may request a pre-trial conference by filing with the local registrar: (a) a joint request in Form 4-11 that: (i) contains a certificate of readiness; (ii) confirms that efforts at settlement have been made; Purpose of pre-trial conference 4-12(1) The parties shall make a genuine attempt to settle an action before a pretrial conference. (2) A pre-trial conference is not to replace normal negotiations between the parties. (3) The goals of a pre-trial conference are: (a) to allow the parties to participate in the problem-solving process; (b) to allow the parties to receive the view of a trial judge as to the issues, both facts and law, in dispute, as far as the material before the pre-trial judge allows; (c) to allow settlement options to be presented that would not necessarily be available at trial; (d) to seek settlement of the dispute so as to improve the efficiency of the court system and to save time and costs for all parties and witnesses. Matters can only be taken to pretrial conference when settlement is not possible. It is not the default spot for negotiations. Counsel who fail to negotiate prior to pretrial may face the award of costs against their client or worse. Both at the court level and the professional level a major part of any lawyer s skill set and professional responsibility is to work toward settlement. Lawyers need to be competent at settlement. They need to understand settlement.

6 6 TRAINING Finally, for anyone interested in advancing their settlement skills and becoming qualified at collaborative law the Collaborative Lawyers of Saskatchewan will be offering training this winter as follows: Basic 2 day Interest Based Training: November 30, December 1, days Collaborative Law Training January 18-19, 2013 For more information: info@collabsask.com Call Shirley: (306)