Reclaiming Advocacy
Nancy Cameron, Q.C.
Definition of advocate
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One that pleads the cause of another before
tribunal or judicial court
One that argues for, defends, maintains, or
recommends a cause or proposal
To plead in favour of, defend by argument
before tribunal or judicial court
Support or recommend publicly
Traditional advocacy: Process
components
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The disputants no longer dialogue
directly about the issues
Debate happens between the advocates
Traditional advocacy: Debate
between the advocates
Debate between the
advocates
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Listening is less important than speaking
Assumes a third party decision maker
The third party decision maker is removed
from the parties’ experience
Any opportunity for greater understanding
between the disputants themselves is lost
Definition assumes a third
party decision maker
Process or outcome?
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Advocacy traditionally defined in
process terms to persuade for a
particular outcome
How do we re-define advocacy when
the task is to reach a mutually agreed
upon solution?
Re-defining Outcome
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Meet the highest prioritized needs of
each client
Protect and safeguard children’s wellbeing and security
Maintain (or if necessary, repair or
create) working relationship between
clients
Outcome
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Practical enough for the clients to be
able to live with and carry through
Informed enough by the legal backdrop
to withstand judicial scrutiny
Do no harm
Role of the Advocate in a selfdetermination model
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Advocacy around process components
Advocacy around how we work through
substantive components (includes
education)
Advocacy in the Collaborative
Process
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Working individually with my client
Building a good relationship with the other
advocate
Teamwork
Process facilitation
Self awareness so that I do not become the
problem
Reconciling the tension between obligation to
the process and obligation to the client
Advocacy and process
components
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Because process is so critical and so different
in this model, must pay particular attention to
process components
This includes, from the outset
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Screening
Education about process options
Informed consent
Informed decision making
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About process choices
About the disqualification agreement –
what this means for the client and for
the lawyer
About articulating one’s own needs in
the process
About willingness to move to finality;
process readiness
Once my client has chosen
collaborative process
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Assist her to articulate and prioritize her
needs
Assist him in analyzing and sorting
through conflicting goals
Educational role
Educational role
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Giving legal advice
Educating about children’s needs
through the separation and divorce
process
Educating about adult pathways
through divorce
Normalizing behaviour
Setting realistic expectations
Legal advice
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Opinions about:
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the application of the law to the facts
the probable outcome if the facts were
adjudicated by a third-party decision-maker
the range of possible settlement outcomes
considering the legislation and case law
the range of possible settlement outcomes
considering the highest prioritised settlement
needs of each spouse
Legal advice
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Discussions about:
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what the relevant legislation sets out, with some
clarification as provided by case law
the interplay between process and substantive law
process choices and likely consequences of
different process choices
process choice, related cost (including financial,
emotional and relational) and outcome variables
Legal advice
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An acknowledgment that law is a vital and
changing entity
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the diversity of individual facts limits the number
of hard and fast rules
A backdrop discussion to return to as a
benchmark for fairness
Directive component
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Self-awareness
Empathy combined with honesty
A resolution that works for both parties
Communication
Readiness
BATNA and WATNA
Building a good relationship
with the other advocate
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How do we negotiate process with our
lawyer colleagues?
If this is a flexible process built on client
needs, how much orthodoxy do we
build in?
How do we reconcile process demands
with advocacy?
Teamwork
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Lawyers tend to be very individualistic,
new for us to work as part of a team
Need to watch out for the possibility of
entrenched teams
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Either lawyer client or lawyer/coach/client
Need to be a team member and at the
same time be an advocate
Process facilitation
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Co-managing the four ways
Modeling behaviour
Freedom to critique each other’s
working relationship
Independent, objective criteria
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Identifying when these are needed
Building collaborative process to gather
these
Personal role
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Watch my knee jerk reactions
How do I respond to positional
behaviour in my colleague?
Care that I don’t become the problem
Reconciling the tension
between:
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Obligation to collaborative process and
Obligation to our client
Values
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Change in how we think about and
articulate our underlying values
In this role, we are no longer cloaked
by the myth of value neutrality
With the change in our role as
advocate, our underlying values are
more obviously influential
Process values
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Can we develop a process that is not
culture or socio-economic specific?
Values and assumptions about
lawyer-client relationship
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Empowerment vs. protection
Paternalism vs. self-determination
My values as a lawyer and as a person
vs. my client’s values
Being aware of my values
Articulating this to client
Substantive values
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Working with clients to build principals
that underpin decisions which may be
different from the principals that
underpin the substantive law
Watching my reactions when my values
clash with my client’s or with the other
party’s values
A New Definition of Advocacy
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To honour client process choices and agreed
upon values while:
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Being steadfast in providing comprehensive
support to the client
Assisting the client to understand and articulate
his short and long-term interests and goals, and
Offering the necessary support and leadership to
enable her to resolve disputes.