Staying Within the Lines: Separation Agreements by Non-Lawyer Mediators
by Cathryn Paul
As family dispute resolution professionals, we are in it to help people. We want to do everything that we can to help people resolve their conflicts in a cost-effective manner. However, we have to ensure that we stay within the bounds of our professional competence to avoid doing harm or exposing ourselves to liability.
One issue that has come to light lately is that of the drafting of separation agreements by non-lawyer mediators.
A document that is entitled a “memorandum of understanding” or “mediation report” that in fact is more like a domestic contract, and has releases, general terms, and lines for signature, may be found to be a domestic contract, despite its title. If the drafter is not a lawyer, this work may expose him or her to prosecution for unauthorized practice of law, as well as may expose them to having their insurer deny coverage.
In Law Society of Upper Canada v. Boldt, 2006 CanLII 9142 (ON SC), the Superior Court of Ontario found that, notwithstanding that it was called a memorandum of understanding, a paralegal drafted a separation agreement for parties in the context of a mediation, and that this was unauthorized practice of law. Appeals from this decision were dismissed at both the Ontario Court of Appeal and Supreme Court of Canada.
The hearing judge stated: “There is no statutory exception allowing non-lawyers to draft separation agreements, provide legal advice with respect to separation agreements, or prepare court documents for an uncontested divorce.” And “I find that these documents, notwithstanding their title, were prepared with the intention of affecting the legal rights and obligations of the parties who signed them.”
And further: “There are alternatives to the legal process for the resolution of disputes. Mediation is one of these alternatives. However, mediators should not be seen as a low-priced alternative to lawyers. The mediation process cannot be a shield for those who are illegally providing legal advice and leading clients to believe that their legal rights and entitlements are fixed. Where individuals seek advice about creating documents that are legally binding and enforceable and will have an impact on their rights and entitlements, they are entitled to that advice only from lawyers who are regulated in the public interest.”
Although people are certainly entitled to prepare their own separation agreements without lawyers under the law of Ontario, there are restrictions on other people preparing documents for them.
A lawyer may prepare such settlement documents from a neutral point of view, if he/she expressly advises and encourages the parties to seek separate independent legal representation concerning the draft contract. (Law Society of Ontario Rules of Professional Conduct, Rule 5.7.1(4)). Non-lawyers may not prepare separation agreements.
We encourage our members to review their practices to ensure that they are not crossing the line in the preparation of mediation reports, such that they could be seen as separation agreements.
For more discussion on this topic, as well as other ethical issues in mediation, please see the webinar from June 22, 2017 by Richard Shields, Cathryn Paul and Paul Brown, accessible through the member portal (https://www.fdrio.ca/login/) under “webinar archive”.