Core Values: Professionalism and Independence Theories in Lawyer Regulation

Working Paper, May 13 2013

North America is the common law world’s last bastion of traditional lawyer self-regulation. In the United States and in common law Canada, lawyers make and enforce almost all of the rules which govern legal service delivery. These regulatory regimes are also distinctive in their (i) maintenance of a single, unified occupation of lawyer, (ii) insulation of law firms from non-lawyer ownership, and (iii) near-exclusive regulatory focus on individual lawyers as opposed to law firms. Other wealthy English-speaking countries (the UK, Ireland, Australia and New Zealand) have gradually abandoned all of these elements of traditional lawyer regulation over the past 40 years.

Why have North American lawyers and legislators resisted such reforms and maintained traditional self-regulation? One school of thought is that lawyers have defended traditional self-regulation in order to protect their own interests. However, North American lawyers supported by functionalist sociologists respond that traditional self-regulation protects the interests of clients and the public by upholding important core values. This article seeks to elucidate this public interest theory, through a new reading of the legal and sociological literature. The thesis is that professionalism and independence are the two allied but conceptually distinct core values which animate the public interest theory of traditional lawyer regulation.

Online: SSRN, http://ssrn.com/abstract=2262518

The Settlement Mission in Custody and Access Cases

(2013) Working Paper.

This article reports on empirical research into family justice system workers, and their approach to child custody and access cases.  The child custody evaluators whom the author interviewed have formal roles that appear to require analytical decision-making about the best interests of children.  However, the central finding of this research is that these professionals are actually pursuing voluntary settlement between the adult parties as their primary goal.  This article then proposes an explanation for this observed phenomenon, based on the evolution of custody and access law and procedure over the past 30 years.  The rise of the “logic of durability” seems to offer a convincing explanation for the concerted pursuit of settlement among both child custody evaluators and judges.

Online: SSRN, http://ssrn.com/abstract=2101819.

The Settlement-Seeking Judge: A Mock Trial

 Journal of Dispute Resolution, Fall 2013 (Published 2014)

Judicial dispute resolution is common in family courts, where it usually consists of informal efforts to bring about settlement in pre-trial conferences. Many judges are especially eager to promote settlement in child custody and visitation (access) cases. This paper will critically evaluate informal JDR in parenting disputes, by asking whether and to what extent it is in the best interests of the children involved. It begins by identifying several features which distinguish custody and access disputes from other types of civil litigation, and which are relevant to the normative analysis of JDR in this context.

The paper then describes and evaluates three arguments which might be made against informal JDR in custody and access.  First, one might argue that there is too much settlement and not enough neutral adjudication of civil cases in general, or of parenting cases in particular. Second, one might applaud settlement in these cases but say that the efforts of the justice system to encourage it are ineffectual or inappropriate. Third, one might approve of settlement-seeking by the justice system in custody and access cases, but maintain that the system’s reliance on judges to do this work is mistaken.

The first two arguments can be rejected , but the author argues that the third has substantial merit. This paper will conclude by arguing that facilitative mediation by non-judges appears to have significant advantages over judicial settlement-seeking as a way to resolve custody and access cases without adjudication. Assigning settlement-seeking to facilitative non-judges could revitalize both settlement-seeking and adjudication in family court.

Online: Social Science Research Network, http://ssrn.com/abstract=1898629.

Mandatory Family Mediation and the Settlement Mission: A Feminist Critique

Canadian Journal of Women and the Law, Vol. 24, No. 2 (2012)

North American family law conflicts are very often brought to mediation, in which a neutral third party attempts to bring about a voluntary resolution of the spouses’ dispute.  Family mediation has many enthusiastic supporters, and has in many jurisdictions been made a mandatory precursor to traditional litigation.  However, it has also given rise to a potent feminist critique, which identifies power imbalance and domestic violence as sources of exploitation and unjust mediated outcomes. This article summarizes the feminist critique of family mediation, and assesses the efforts of contemporary mediation practice to respond to it.  Even in the absence of formal family mediation, litigating spouses are likely to be subjected to substantial informal pressure to settle from judges and other family justice system workers.  The article argues that the feminist critique might be more relevant to this “settlement mission” than it is to formal family mediation as it is practiced today.

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Book Review: The Best Interests of Children – An Evidence Based Approach, by Paul Millar

Osgoode Hall Law Journal, Vol. 48, No. 3/4, p. 695

If custody and access disputes are a deck of cards, the trump suit is the best interests of the child. When separating parents litigate about how and with whom their child should live, findings about what’s best for the child are meant to sweep away the parents’ interests and rights-claims. This principle is uncontroversial, but applying it is difficult. What parenting arrangements are best for children, and how successful is the legal system in putting these arrangements in place?  Sociologist Paul Millar has responded with this slim volume, the goal of which is to “explain child custody outcomes in Canada in terms of factors that predict legal behaviour and factors that are empirically associated with beneficial outcomes for children.” The empirical data in this book is a powerful and fruitful new source, but unfortunately it is not complemented by a broad or objective account of the secondary research and case law in this field.

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Judicial Settlement-Seeking in Parenting Disputes: Consensus and Controversy

(2012) Conflict Resolution Quarterly, Vol. 29, No. 3, pp. 309-332

The judicial role in child custody and visitation disputes has traditionally been understood as one of authoritative decision-making. However this new empirical research suggests that many family court judges prioritize the pursuit of voluntary settlement in pre-trial conferences, using evaluative and facilitative mediation techniques. Drawing on qualitative interviews with judges and other family law professionals in Toronto and New York City, this article identifies points of consensus and controversy among settlement-seeking family judges. Despite the general support for settlement-seeking, there are substantial differences of opinion regarding coercion, due process, and the meaning of the best interests of the child standard.

Online: SSRN, http://ssrn.com/abstract=1687268