D. Duty of Legal Profession to Promote Reconciliation, Negotiation, and Mediation

Author:Julien D. Payne - Marilyn A. Payne

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1) Duty of Legal Adviser

Section 7 of the Divorce Act, 196811imposed a duty on lawyers representing a divorce petitioner or respondent to discuss the possibility of spousal reconciliation and to inform the client of marriage counselling or guidance facilities that might assist the spouses in achieving reconciliation. This duty is restated in subsection 9(1) of the current Divorce Act and is now complemented by additional duties under subsection 9(2) that are designed to promote negotiated settlements and the mediation of support and custody disputes arising on divorce.12The experience under section 7 of the Divorce Act, 1968 suggests that the duty to promote reconciliation is regarded as a pro forma requirement by the legal profession. Once divorce proceedings are instituted, thereby triggering

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the statutory duty, few lawyers view spousal reconciliation as a viable option. The institution of the divorce proceeding is perceived as an extremely strong, if not conclusive, indication that at least one of the spouses is adamantly of the opinion that the marriage has irretrievably broken down and that any attempts to reconcile will prove futile. Most lawyers will, therefore, discharge their statutory duty by a brief discussion to ensure that their client is "a serious client" and by handing out a list of available marriage counselling services in the community.

Lawyers are effective, however, in promoting the negotiation of settlements. This is amply demonstrated by the fact that 86 percent of all divorce cases are uncontested from the outset and less than 4 percent involve a trial. Lawyers acting within the scope of their actual or apparent authority may bind their clients to a settlement negotiated on their behalf. If a lawyer negotiates a settlement without actual authority to do so, the client is still bound by the settlement so long as the other party was not aware of any limitation placed on the lawyer’s authority.13Subsection 9(2) of the current Divorce Act may be perceived as promoting third party mediation as an alternative process to litigation in those cases where no agreement can be reached by the lawyers on behalf of their clients. Several provincial law societies have endorsed the practice of lawyers themselves engaging in mediation.14

2) Duty of Court: Reconciliation

Subsections 10(1), (2), and (3) of the current Divorce Act substantially correspond to section 8 of the Divorce Act, 1968.15Subsection 10(1) of the Divorce Act imposes a duty on the court, before considering the evidence in a divorce proceeding, to satisfy itself that there is no possibility of the reconciliation of the spouses, unless the circumstances are of such a nature that it would clearly not be appropriate to do so. Subsection 10(2) further provides that, where at any stage of a divorce proceeding, the court sees a possibility of reconciliation, the court shall adjourn the proceeding to afford the spouses an opportunity to achieve a reconciliation. With the consent of the spouses or in its own discretion, the court may nominate a duly qualified person or agency to assist the spouses to achieve a reconciliation. Pursuant to subsection 10(3) of the Divorce Act, when fourteen days have elapsed from the date

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of any adjournment, the court must resume the proceeding on the application of either or both spouses.

The duty of the court under section 10 is confined to examining the prospects of reconciliation. By its nature, reconciliation implies a bilateral intention to re-establish the marital relationship. Where the court is faced with a complete denial of any prospect of reconciliation by the petitioner, the court should find against the possibility of reconciliation, notwithstanding a fervent desire for reconciliation on the part of the respondent.16

3) Confidentiality

Subsections 10(4) and 10(5) of the current Divorce Act correspond to section 21 of the Divorce Act, 1968.17They provide as follows:

Nominee not competent or compellable

10.(4) No person nominated by a court under this section to assist spouses to achieve a reconciliation is competent or compellable in any legal proceedings to disclose any admission or communication made to that person in his or her capacity as a nominee of the court for that purpose.

Evidence not admissible

(5) Evidence of anything said or of any admission or communication made in the course of assisting spouses to achieve a reconciliation is not admissible in any legal proceedings.

Pursuant to these provisions, the confidentiality of the reconciliation process is guaranteed by a statutory prohibition against the admissibility of evidence which, unlike a common law privilege, cannot be waived.18Statements made during marriage counselling aimed at promoting a spousal reconciliation are inadmissible in subsequent divorce proceedings, even though the statements might themselves have been tantamount to cruelty. But a draft domestic contract presented to the wife by the husband is admissible as

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indicative of the husband’s cruelty where no prior settlement negotiations had been entered into by the spouses.19Judicial opinions have divided on the question whether the statutory prohibition is confined to reconciliation attempts undertaken by a court-ap-pointed conciliator. In Robson v Robson20and in Cronkwright v Cronkwright,21Wright J of the Ontario Supreme Court endorsed a restrictive interpretation of subsection 21(2) of the Divorce Act, 196822so as to...

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