Amid the usual folderol that can be safely ignored by all except those in trouble with the Law Society are two important amendments to the commentary to s. 5.7 of the Code of Conduct, titled "Role of mediator."
1. The comment that lawyers should not give advice when acting as mediator has been rescinded. In its place, lawyers are referred to Appendix B of the Code on family law mediation, arbitration and parenting coordination which contains this modest stricture at s. 3:
A lawyer who acts as a family law mediator or arbitrator or parenting coordinator for participants who are unrepresented must:
(a) urge each unrepresented adult participant to obtain independent legal advice or representation, both before the commencement of the dispute resolution process and at any stage before an agreement between the participants is executed;
(b) take care to see that the unrepresented participant is not proceeding under the impression that the lawyer will protect his or her interests;
(c) make it clear to the unrepresented participant that the lawyer is acting exclusively in a neutral capacity, and not as counsel for either participant; and
2. A new comment has been added to allow mediators to act for both parties in a joint divorce action.(d) explain the lawyer’s role in the dispute resolution process, including the scope and duration of the lawyer’s powers.
A lawyer who has acted as a mediator in a family law matter may act for both spouses in a divorce action provided that all relief is sought by consent and both parties have received independent legal advice in relation to the matter.
Both of these amendments are aimed at dealing with the conflict issue that is believed to arise when lawyers act as mediators, namely that in "acting" simultaneously for two people opposed in interest the lawyer is in a conflict of interest, which had previously been addressed by the fiction of the law society's rule that lawyers must not give legal advice and must instead give only legal information. The reality of practice is that the lawyer mediator gives abundant "legal information" to both parties as an essential part of the lawyer's toolkit to reach settlement; it is a relief that the fiction has been recognized and dealt with.
The same conflict issue arises when the lawyer mediator is asked to get the parties to a mediation divorced, which is often a more or less a natural follow up to the lawyer's settlement of the parties' dispute. There are two types of basic divorce claim, the "sole divorce" where one spouse takes the initiative and sues the other for a divorce, and the "joint divorce" where the spouses cooperate and ask the court for the divorce together. The sole divorce is the usual way of doing things when a lawyer is involved. The joint divorce, however, is both faster and cheaper as you needn't pay for a process server or wait for the expiry of the reply period. However, a lawyer cannot "act" for the parties to a joint divorce as they are, theoretically, opposed in interest; hence the conflict. As a result, lawyers would typically offer to prepare the forms for the couple but not go on record as acting for either of them which, while very practical, simply ducks the issue and fails to obviate the conflict. The amendment allowing lawyer mediators to handle joint divorces is timely and most welcome.