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Appendix 2 of seven appendices in the annotated Professional Conduct Handbook

 

APPENDIX 2
FAMILY LAW MEDIATION

[Chapter 6, Rule 9]

Definitions

1. In this Appendix:

(a) "family law mediation" means a process by which two adult persons ("participants") attempt, with the assistance of an impartial person (the family law mediator), to reach a consensual settlement of issues relating to their marriage, cohabitation, separation or divorce;

(b) without limiting the generality of the foregoing, "family law mediation" includes one or more of the following acts when performed by a lawyer acting as a family mediator:

(i) informing the participants of the legal issues involved,

(ii) advising the participants of a court's probable disposition of the issue,

(iii) preparing any agreement between the participants other than a memorandum recording the results of the mediation,

(iv) giving any other legal advice.

2. [Rescinded 02/93]


Disqualifications

3. (a) If a lawyer, or a partner, associate or employee of that lawyer has previously acted or is presently acting for one or both of the participants to the mediation in a solicitor-client relationship with respect to any matter which may reasonably be expected to become an issue during the family law mediation, that lawyer may not act as a family law mediator for the participants.

(b) If a lawyer has acted as a family law mediator for the participants, neither that lawyer, nor any partner, associate or employee of that lawyer may act in a solicitor-client relationship for either participant against the other participant.

(c) If a lawyer, or a partner, associate or employee of that lawyer has acted as a family law mediator for the participants, neither that lawyer, nor a partner, associate or employee of that lawyer may act for or against any person where to do so might require the lawyer to disclose or make use of confidential information given in the course of mediation.


Mediator's duties

4. A lawyer who acts as a family law mediator must ensure that if agreement is reached between the participants and as a result the lawyer drafts a document representing the agreement reached, the lawyer actively encourages each participant to obtain independent legal advice before executing the agreement.


Written agreement

5. A lawyer who acts as a family law mediator and the participants with respect of whom the lawyer mediates shall, before mediation commences, enter into a written agreement which shall include at least the following provisions:

(a) an agreement that the lawyer, throughout the mediation process, is not acting as legal counsel for either participant,

(b) an agreement that the lawyer may disclose fully to each participant all information provided by the other participant which is relevant to the issues being mediated,

(c) an agreement that the mediation process is part of an attempt to settle the differences between the participants and that all communications between the participants and between each participant and the mediator will be "without prejudice" so that:

(i) neither participant will attempt to introduce evidence of the communications in any legal proceedings,

(ii) neither participant will attempt to call the mediator as a witness in any legal proceedings,

(d) an acknowledgment that the lawyer must report to the Superintendent of Family and Child Services any instance arising from the mediation in which the lawyer has reasonable grounds to believe that a child is in need of protection,

(e) an agreement as to the lawyer's rate of remuneration and terms of payment,

(f) an agreement as to the circumstances in which mediation will terminate.


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Appendix 2 of seven appendices in the annotated Professional Conduct Handbook