The advocate’s substantive preparation:
Family lawyers need to do a lot of pre-negotiation work necessary to fully understand the strengths and weaknesses of their own client’s case, and to prepare the client for the negotiation with this assessment in mind. This includes not only a legal assessment, but a comprehensive assessment of all of the elements of a party’s B.A.T.N.A. (best alternative to a negotiated agreement), and the other party’s B.A.T.N.A., so that your client fully appreciates his or her options if a settlement is not reached. This preparation is more fully canvassed in other chapters in this book.
One of the main challenges in settling cases where only one is represented is the disparity in legal skill and knowledge. Parties with no legal representation are less likely to have a realistic appraisal of the strengths and weaknesses of their case. While your role as counsel for your client cannot be compromised, it will be in your client’s best interest if the unrepresented party is sufficiently empowered to negotiate from an informed position. Some strategies you can use:
(a) Use a mediator, particularly one who is prepared to be evaluative yet spends enough time meeting with the parties in the screening process to gain the confidence of the unrepresented party. This may help the unrepresented party appraise his or her case more accurately. A mediator can help both parties do hard reality-checking.
(b) Without providing legal advice, help the unrepresented party find the information he or she needs to better understand or more realistically assess his or her alternatives to a negotiated agreement. Refer the unrepresented party to a number of sources of legal information and advice, and provide him or her the time he or she needs to become better informed. You do not want to be seen to be taking advantage of this party’s lack of legal knowledge or sophistication.
Use a mediator to help the parties prepare their financial disclosure; or negotiate interim arrangements. Be prepared not to attend the mediation if your client is comfortable with that, but rather advise your client before and after the meeting. Accredited mediators in Ontario (including court-connected service providers) even if the mediators are also family lawyers, do not permit parties to enter into binding settlements without their counsel present, so there is little risk to letting your client try this process without you there. This may help meet the procedural needs of the unrepresented party as well, enabling both parties to explore possible settlements in a safe and non-threatening environment.