The Law Society of BC, the “Unauthorized Practice of Law” and Mediation

If I am a mediator, but not a practicing lawyer in BC, when do I cross the line into the “practice of law”? What does that line look like? Is there a line at all? How does this affect how I practice mediation and serve my clients?

These are thorny questions. They are not new and mediators in BC and abroad have been struggling with them for decades.

Over the years, the Law Society of BC has received complaints that mediators have crossed the line and, in some cases, has sought ‘undertakings’ from these mediators that they will change their activities and in other cases has applied to the Supreme Court for an injunction prohibiting that mediator from engaging in the practice of law.

Mediate BC’s Rosters include mediators from a wide variety of backgrounds and we celebrate this diversity and the range of services that are available to BC citizens to resolve their disputes. Mediate BC wants to support Roster mediators by helping to clarify what the “practice of law” means to them and how to avoid a Law Society complaint.

We are pleased to advise that the Law Society of BC has recently released an “Information Bulletin” entitled the “Unauthorized practice of law” which tackles this issue directly.

LSBC Info Bulletin Unauthorized Practice of Law

The bulletin highlights the situations involving particular risk:

  • Advising mediation participants on the law or their legal rights
  • Drafting enforceable contracts (including advice on how to structure their agreement)

While this bulletin is helpful, we see it as only the first step of a dialogue, first with the BC mediation community, and then with the Law Society of BC. Mediation is a key part of an effective access to justice strategy and the Law Society of BC supports the creation of new categories of “legal service providers” (regulated by the Law Society). So an important additional question needs to be addressed: How, and to what extent, can BC mediators who are not practicing lawyers provide services to the public that would, under the current definition, be considered the “practice of law”?

Mediate BC is organizing a community dialogue process over the next several months to discuss the Information Bulletin and these other important questions. We are very keen to obtain your input and ideas. Please watch for more information about dates/times/locations for these sessions.

Thank you,

Kari D. Boyle
Executive Director, Mediate BC

6 thoughts on “The Law Society of BC, the “Unauthorized Practice of Law” and Mediation”

  1. Thanks for this Kari,
    Certainly a discussion worth having. As a non lawyer mediator who has also been in this debate as an architect competing with designers I would like to remain connected. The points I would like to make are:
    Whilst conflict is the area that lawyers deal with in our society they are trained in adversarial solution methods where one side is represented. It must be quite hard for lawyers to shift gears into the expanded frame of reference where both parties can be correct. I always remember a judge in one of my classes saying “well you know within five minutes what the solution is, the rest of the mediation is just dragging them kicking and screaming to it.” Judges are of course very smart and have seen many cases however sometimes parties will agree to end the conflict with something completely different for their own reasons.

    Mediated agreements do not have to be about the law at all. The parties can agree to whatever they like to put the conflict behind them. (Legal and power balanced of course). The problem with sending parties off to get legal advice from a lawyer who will represent only them and who was not present is that they will often advise that they could have done better. The number of times I have sat with lawyers on both sides telling their clients that it will be a slam dunk in court so don’t give too much away. Some one is wrong.

    As to the two categories you list above the first is easy. Don’t give legal advice. It helps not to be a lawyer here as I don’t know. How does a lawyer mediator deal with this?
    The second is the tricky one. How is the law society feeling about the agreements in small claims for instance? I feel ok about them as being a reflection of the parties wishes expressed using the framework that we have developed. However I am sure that if I was a lawyer and a party walked in an showed me an agreement and said “is this ok?” I would probably need to earn my fee with some analysis and recommendations which would probably kill the agreement since the other party would not be there.

    All these things I am sure that you know and appreciate. I will sign of now as it is supper time in Epernay and the Champers calls.

    1. Hello Martin and thank you so much for your helpful comments! It sounds like you are out of the country so I’m sorry if you won’t be able to attend the meeting in person. You have raised some excellent issues and I will make sure that we raise them during the meetings. I am happy to advise that Michael Kleisinger from the Law Society has agreed to participate for the first part of each meeting (Victoria June 15 and Vancouver June 17) in order to provide more clarification and to answer questions. I know this will be helpful as some of these issues are thorny indeed!

      One more point: agreements drafted by Small Claims Mediators in the Court Mediation Program fall within a specific exception to the definition of the “practice of law” (the mediator is not paid directly by the parties to the mediation).

      Thanks again for chiming in Martin!
      Warmest regards,
      Kari

  2. The dialogue is so welcome and its results will doubtless clarify a great deal for mediators who are not also lawyers. Where the Law Society has been unclear is with respect to the related question of what lawyers are doing when they mediate.

    The Information Bulletin makes the sweeping assertion that the Code “…specifically addresses the duties and responsibilities of lawyers who act as mediators”. No it doesn’t. Chapter 5.7 only speaks to two small but important procedural points (that the mediator is not acting as either party’s lawyer and that no conventional solicitor-client privilege attaches to the relationship). The much more important and interesting question of whether lawyers are engaging in the practice of law at all when they mediate, is not addressed in the LSBC’s governing documents. It is merely assumed.

    This continues to be a thorn in the flesh of lawyer/mediators in B.C. since other jurisdictions (in Canada and elsewhere) have long held that lawyers, when they mediate, are NOT engaging in the practice of law unless, of course, they also provide services that are traditionally or specifically recognized as the practice of Law. Significant consequence flows from the answer to this question, such as incorporation, insurance, practice with other non-lawyer professionals, advertising, reporting requirements, trust funds, to name a few. The Law Society ought to have the courage to articulate clearly it’s view about this.

    1. Thank you so much for your helpful comments Gordon. I will make sure that these concerns are raised for discussion and brought to the Law Society’s attention.

      Kindest regards
      Kari

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