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Update to Principles of Effective Dispute Resolution

Ken Proudman Executive
 view Arbitrator profile
  BARR LLP
   Edmonton, Alberta


I added a sentence to the Principles of Effective Dispute Resolution urging lawyers to considering recommending ADR at the outset of a matter, including collaborative law. Thank you Linda Long, QC for that suggestion!

The full principles can be read here, and I urge you to publicly pledge your support by clicking the button on this page: https://familycounsel.ca/principles.php


0 22 months ago - edited 22 months ago

Anonymous 2017
   Edmonton Region, Alberta


These are not principles, they are a wish list for things people should be doing.

Principles should express some fundamental truth, the application of reason without emotion. "cc'ing assistants" and "flagging emails" isn't exactly what this is about.

Not that I don't appreciate the thought about feeling lawyers need something more "solid" to adhere to.

In so far as statements of purpose intend to be inspiration and aspirational, it is worth checking out what things like service clubs do. I always liked Rotary, for example, for developing something of a "test" for how people can ground themselves in enhanced relationships https://www.clubrunner.ca/data/7090/html/121711/TheGuidingPrinciplesofRotary.pdf.

By the way, I think this also has to tie in to the idea of "what lawyers are" and "what laws do". I sense there is some approaching law more in a "business-like" manner, but the conclusion pretty much disregards all the years of development of a legal tradition and probably knee-caps the call of law that beckoned many of us. Anthony Kronman, for example, has a good paper that reflects on the difference between living IN the law, versus living OFF the law https://chicagounbound.uchicago.edu/uclrev/vol54/iss3/3/.

If you want to start developing something here, though, I would suggest you start with the founding premise of dispute resolution - that most if not all conflicts benefit from an exploration of whether interests may be better served by agreement than adjudication....or punches in the face. The commitment then is to do one's best to support that exploration and provide effective counsel/advocacy throughout.


0 22 months ago

Ken Proudman Executive
 view Arbitrator profile
  BARR LLP
   Edmonton, Alberta


The "fundamental truth" definition is the first in the list that comes up on Google when you search for the definition of principle, but if you click on "more definitions" right below, there are 8 definitions, including "a rule or belief governing one's personal behaviour", or "morally correct behaviour and attitudes". One of Merriam-Webster's definitions of principle is "a rule or code of conduct". Two of Cambridge Dictionary's definitions are "a moral rule or standard of good behaviour" and "a moral rule or standard of good behaviour or fair dealing".

I wasn't aiming to write a philosophical treatise, my focus was on practical behaviours that lawyers can do to increase rapport, reduce conflict, and get to a deal more efficiently. I would have called it a Code or Rules, but those names were already taken, and if lawyers adopt this, they're doing so because of their personal ethics, not because there's any authority to the rules. They're a source of personal ethics than transcend the bare minimum imposed by the Law Society. If you still don't agree with the term principle, do you have any suggestions for a more suitable name?


0 22 months ago

Anonymous 2019
   Edmonton Region, Alberta


To the Anon above:

I haven't read Prof. Kronman's paper since I was in law school -- and only then because a certain professor thought it was necessary.

I'm glad he thought it was necessary, and I'm glad you posted this so I could read it again.


1 22 months ago

Anonymous 2017
   Edmonton Region, Alberta


@Ken Proudman:

Well I hope you can’y blame lawyers for being a little picky on semantics haha.

Basically things you ask people to commit to are called “Commitments”, so something like that. Key Commitments to add an intensifier.


0 22 months ago

Anonymous 2017
   Edmonton Region, Alberta


@Ken Proudman:

I’ll say more broadly though in the current form I wouldn’t be interested in taking any “pledge” for the outlined commitments desired. I simply couldn’t respect myself if I did. Like I say, they read as highly personalized wish lists. You say you don’t want to veer into the philosophical, but the result is vacuous. Not to say many of these things are bad ideas. Sure, lets not continue with clients who reneg on deals. Lets not take a file out of greed and bungle it when it exceeds our competence.

But one needs a “grounding” commitment. This is why you might think that the code of conduct is a little shallow. Achieving a maximum result for a client within circumscribed bounds is probably more of a criminal law concern than a family one where the idea of a maximum result is illusory - when you win big, you lose.

This is why developing a set of principles more fitting for family practice is really a good thing. Done well, and properly accepted, they point as to why I should practice as well as how I should practice.

You might not have common principles for everyone, just like you may not have common professional development plans for everyone. But the code of conduct at least searches for a universal base to build things off of - integrity. What is integral may be subject to milieus and features of the law or the constitution of certain lawyers. But the concept is of an unwavering call - though financial pressures mount, though judicial disfavour attack, though social unpopularity assail me, I will do my utmost to understand and do right by my client.

Matters of relationships with other lawyers then start to flow from the grounding commitment. I will respect my fellow lawyer, not to make our jobs easier or more “business-like” or profitable, but because respect is integral.

Anyway, I’m not necessarily saying everyone has to approach all files with a sense of heaviness and existential consequence. We are mainly lawyers on the go, not lawyers in the arm chair. But for you to say this list touts things as being “higher ethics” - no. It is lower ethics. They do not answer what is at stake for practicing family law, unless what is at stake is alleviating frustrations in practice, which is a flimsy source to base anything.

The practice of law improves the greater our work connects to a satisfying purpose. It degrades when it does not. Because I find no satisfying purpose to these commitments I cannot partake, as I do not wish my practice to degrade. Saying this is different from saying the items are necessarily wrong, only that they are adrift.

My idea of a better vision would be to frame your items like this:

1) I pledge to answer for myself my reason for practice and assure it aligns with the pursuit of good.
2) I pledge to hold myself accountable my conduct with parties and lawyers.
3) …

A modified version of your list would still have its place as a modelling of norms and behaviours. But there should be that proviso akin to George Orwell’s in “Politics and the English Language” - break any of these norms sooner than allow them to be used or abused for any injustice.


0 22 months ago

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