Thursday Thinkpiece: Beggs and Kaufman on Alternative Legal Career Paths

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Out of Practice: Exploring Legal Career Paths in Canada
Leeann Beggs, Director of Student and Associate Programs at Gowling Lafleur Henderson LLP – Ottawa
Amy Kaufman, Head of William R. Lederman Law Library, Queen’s University

© 2015 Carswell. Reprinted with permission.

Excerpts: from Introduction and Chapter 7
[Footnotes omitted. They can be found in the original via the link above]

CHAPTER 1: INTRODUCTION

How do you know when it’s time to try something new? That can be a loaded question when we’re talking about a legal career.

By the time you’re asking this question, you may be partway through law school, or maybe you’ve graduated and are wondering about articling, or maybe you’re not sure if you’ll be hired back (or if you want to be hired back), or maybe you’re an associate at a firm. At any of these points, you’ve already invested lots of time, money, and effort into getting where you are. And you’ve probably also invested a lot in thinking that you’re going to be a lawyer for the long haul.

While it can be exciting to think about career options and finding a new track, it can also be a lonely question to ask – and answer. It may or may not be a question you feel comfortable discussing with classmates or colleagues. But in fact it’s a question that many, many law students and lawyers ask themselves.

The range of answers can be amazing and inspiring. But because it can feel like such a personal thing, we don’t always hear about them. And we hear about the bends in the road, and the possible speed bumps and detours, even less.

This book is meant to ask the questions about lawyers considering career changes and report on the answers we’ve found. We hope it will make anyone considering a career change in law feel like they are part of a big and ever changing conversation about what it means to practise law and the many paths open to people with law degrees – quite beyond the path most travelled, traditional legal practice.

This isn’t a book just about leaving the law, though. You’ll also hear from people who asked themselves if they wanted to stay in the legal profession and found the answer to be “yes.” You’ll hear about the changes they made within their jobs or in other parts of their lives that made this decision right for them.

We’ll talk about the common times in a legal career when people question what their next step should be. And finally, we’ll talk about the law-related or legal-ish jobs out there. We’ll hear from people in these less-traditional legal jobs: what they do, how they got there, and what they would suggest if you’re interested in getting there, too.

While both of us are lawyers, we also both decided to leave the practice of law and found law-related jobs that work for us. Leeann Beggs is a director of student and associate programs at a law firm, and Amy Kaufman is a law librarian. Amy changed career tracks right after articling, while Leeann changed after a number of years and positions in legal practice. So we’ve been there, too, and have gone through the process of seeking out a new career path.

We wrote this book because of our own curiosity and also in the hopes that it would help other people decide what their next step in their career path might be. Writing this book allowed us to interview people doing all sorts of different and interesting things – starting their own companies, blending their passions with their legal training to find jobs that matched their heads and their hearts, finding a niche that made them feel satisfaction in how they were contributing to society, or perhaps finding a balance between work and home that had been lacking in traditional practice. Creating this book also meant we reviewed reports from recent years on the state of the profession, who’s leaving, and why. It led us to see the trends researchers were observing – for example what were the new careers being created because of technological developments or changes in how clients now wanted legal services delivered? And how were lawyers finding their place in this changing landscape?

We also hope this book shows you how many options there really are. The path to these jobs may be less direct and less clearly laid out (though we hope this book will help with that!), but there are many options for those who are willing to actively pursue them.

Data on where lawyers are and their satisfaction with their careers can be difficult to come by; however, we’ve looked at a number of Canadian studies and we’ll talk about them in the book. There is very little in the way of national data, so you’ll see that most of the studies are related to a particular jurisdiction. A recent report from the Canadian Bar Association (CBA) discussed this lack of centrally-collected data, and has recommended setting up a “professional centre of expertise and information on the legal profession in Canada”, so there is hope for more robust data in the future.

There is a lot more data available for the United States, and so we’ll quote it from time to time, but the goal of this project was to look at the Canadian legal profession, since much less has been written about this.

THE “AFTER THE JD” STUDY

One survey that was particularly interesting in the United States was the “After the JD” (AJD) project, which was sponsored by the American Bar Foundation, the NALP Foundation, and the National Science Foundation. It is a longitudinal study of a sample of American lawyers from across the country who were called to the bar in 2000. There have been three waves of data collected so far: 2002-2003, 2007-2008 and most recently 2012. Why there is so little of this sort of data out there may be explained by the complexity of collecting it. Even in this American study, the authors (in the second of the three planned reports) describe how “it required co-operation by 20 state bar authorities in the 18 geographic areas that make up the sample. It then required tracking potential respondents from the date of their admission through to seven years in practice. During the tracking process we learned that 1-2% of AJD sample members change jobs every month and that some 22% had changed states from the state in which they passed the bar”.

While we can’t assume that the American data is directly transferrable to the Canadian context, it does provide some useful information about career paths of lawyers in a legal system that is relatively similar to our own. Preliminary findings from the most recent results of the AJD study were released in early 2014. Among the findings were:

• Lawyers were moving toward working in business (27.7%) and fewer were working in private practice (44.1%)
• Just over 24% were non-practising lawyers
• Among the whole group, when asked to rate “their satisfaction with their decision to become a lawyer,” the average rating was 3.92/5.

At the research seminar where these findings were reported, the dean of law at Northwestern University observed that “the study highlights the need for schools to break down silos between law, business and other programs to prepare students for careers outside of traditional practice”. And this echoes what many of the people we interviewed said, in two ways: first, they said they didn’t feel prepared by law school to have a full appreciation of the options out there and wished they’d known more about the variety of career options when they were younger. Second, they questioned why “legal practice” was defined so narrowly when so many lawyers may go in and out of what’s considered “traditional” legal practice. Other sectors, like business, contain many roles – why does law label some “alternative” or “non-traditional”? This made a lot of sense to us.

We hope this book will be more about presenting a fuller spectrum of legal careers, rather than hiving off certain paths and labeling them as somehow different. There can often be a stigma attached to that difference. First of all, why? And second, if, as in this study, almost one-quarter of lawyers are not in a so-called “traditional” practice 12 years out, is such a division even accurate? Third, does it draw an artificial line between private practice and all other types of legal careers that is, in reality, much more porous, with lawyers going from one to the other, and sometimes back again?

CANADIAN TRENDS

One of the most recent studies of the career paths of Canadian lawyers is Leaving Law and Barriers to Re-entry: a study of departures and re-entries to private practice. It is a longitudinal study of 1,600 Ontario lawyers over 20 years. Initially, 72% of their sample of 1,577 law graduates began their career in private practice, with 10% beginning in government, 5% as in-house counsel, 2% in legal aid or law clinics, 7% in other settings, and 5% not practising immediately after been called to the bar.

As they tracked these people over time, they found that those who started in private practice had an average of three professional positions. This could mean moving from associate to partner, lateral movement between firms, moving to establish a law office, or movement out of private practice. For those who moved out of private practice, that could mean working as in-house counsel with corporations or unions, working in government, starting businesses, going back to school (M.B.A. and LL.M. were mentioned), or staying home with children (particularly for women). New career paths reported included “farming, journalism, law school professor, chocolatier, fiction-writer, professional musician, interior designer, pilot, physiotherapist, and politician (to name only a few).”

Another study published in 2015, The Diversification of Career Paths in Law, commissioned by the Law Society of Upper Canada, surveyed 1270 Ontario law graduates who were called to the bar between 1990 and 2009. Among this group (an equal number of men and women), 85% began their careers in private practice, 9% in government, 1% in legal aid or law clinics, just over 2% in businesses, and almost 3% in places like the military, unions, and non-profit organizations. In contrast, when the survey of these graduates was done in 2009, the number in private practice had fallen to 67%, with 15.5% in government, 1.2% in legal aid or law clinics, 8% in businesses, and the remaining 8% in other settings such as education and management consulting. The study found that 27% of the lawyers surveyed had left private practice at some point, some only for a short time and others permanently.

Job change is quite common among lawyers: a longitudinal study of Ontario lawyers between 1990 and 2002 reported that 48% of women and 34% of men had changed jobs at least once in the period 1996-2002. When the study looked at the complete work histories of these people, it was found that the median number of jobs held by women was three and for men, two. The study also found that, with those second jobs, 10% of the women and 8% of the men were not practising law anymore; as they tracked third and fourth jobs, they found more and more of those jobs were no longer in the practice of law.

That same study showed that, by 2002, 11% of men and 13% of women from the original group of lawyers from 1990 were no longer practising law. However, the study cautions that these numbers under-represent true levels of departure from the practice of law, as people who have left practice are harder to track and less likely to keep participating in the survey.

The Law Society of British Columbia has reported similar trends: while women today are entering the practice of law in similar (or greater) numbers than men, the Law Society found that when it looked at women who had been called to the bar 10 or more years ago, only 34% were still practising law, and only 29% were in full-time private practice.

It is a challenge to track lawyers and find out what, exactly, they’re doing, if they are not engaged in the practice of law. One way to gain an understanding of the number of lawyers engaged in a career change is to review the filings they make about their status to the various law societies in Canada. Each year, all lawyers must submit a report to the law society of their jurisdiction in order to remain in good standing. If they are practising law, they provide information about the type of practice and report on financial dealings. If they are not practising law, some still have to file annual reports and indicate which category they fall into, though the filing obligations of non-practising lawyers can vary from jurisdiction to jurisdiction. From this information, when it’s available, and the reports the law societies produce, we can get some idea about how much movement there is to and from the profession, and, sometimes, what those lawyers who have left the profession of law are doing instead.

In Ontario, in recent years, about 12-13% of lawyer members have filed a change of status in a given year. After excluding people who changed their status because of a parental leave, it was found that the people who were changing their status were disproportionately female: while women make up 39-41% of the membership of the Law Society of Upper Canada, they were 58-60% of the change of status applicants. Younger people were also disproportionately represented: the study’s authors reported that “almost half or a greater proportion of survey respondents … were under 40 years of age compared to 32% of Law Society members overall.”

WHY ARE WE LEAVING?

The 2015 Ontario study asked those lawyers who had left the practice of law

and had not returned the reason for their decision. The most common answers were:

• “leaving for a better work environment”
• “leaving for more compatible work hours”
• “dissatisfied with practice area”
• “leaving for a better job”
• “leaving to better accommodate family needs”
• “dissatisfaction with assignments”22

The Law Society of Alberta conducted a study in 2003-2004 to find out why lawyers in that jurisdiction moved to inactive status. The Law Society found that 50-60% had changed status simply because they had changed jurisdictions, retired, or were on parental leave (and planned to return). The other 40-50% had left practice either because they weren’t happy with the practice of law or where they were working, or because they were drawn to something outside of the practice of law. The distinction between lawyers leaving because they are unhappy with their current work in law (“push” factors) and lawyers leaving because they are excited about opportunities elsewhere (“pull” factors) came out again and again in both the studies and the interviews we conducted.

According to these lawyers, the biggest reasons for their dissatisfaction in working in law were the working conditions: stressful, adversarial nature, lack of civility, hours of work, lack of work-life balance, lack of opportunities for advancement, and lack of control over their work.

At the same time, there were many elements of legal practice that these lawyers did enjoy: the nature of the work, intellectual challenge, standing among colleagues and the public, and (most) working relationships with other legal professionals.

Push and Pull Factors

While being unhappy in a job is a clear reason to start looking elsewhere, it’s also possible that you actually like your current job, but there’s just something else that you want to try, for whatever reason. The author of a Canadian study on the mid-life career change of lawyers (as well as a few other professional groups) found that “even though there was a general sense of enjoyment and fulfillment in the jobs that the participants held, and many of these people felt that they had found their place in the occupational world, those sentiments were not sufficiently strong to keep them there.”

As mentioned above, the various reasons for leaving a current job can be framed as push and pull factors. Some people leave because something in their current job doesn’t work for them (“push” factors). Other people leave because something desirable in a prospective job entices them away (“pull” factors).

…

CHAPTER 7: BEING AN ENTREPRENEUR

…

STARTING A FAMILY LAW MEDIATION BUSINESS

Profile of Rosanna Breitman, Family Law Mediator, Rechtshaffen, Breitman

“I’m self-employed; my husband and I have had our own firm for 20 years now. At first, he and I both had traditional family law practices. After our first two children came, however, I took on the role of primary caregiver and found it very difficult to juggle a litigation practice with young children. I decided to transition into a family mediation practice, and now do family mediation exclusively. My husband and I are still partners, but my hours are significantly fewer than his and fewer than they used to be.

I work about 30-40 hours a week. Currently, I do on-site mediation one day per week at the court-based mediation program in Brampton. The remaining four days I see private mediation clients, catch up on report writing and e-mailing, and try to manage my domestic life.”

What it means to do on-site family mediation roster work at a court

“A couple of years ago, the Ministry of the Attorney General decided they were going to fund on-site mediation at every courthouse across Ontario. The executive director of our group in Brampton oversees a roster of about 20 part-time mediators. None of us is ‘employed’ there. We’re all lawyers or social workers or similar types of professionals in private practice who go in as much or as little as we’ve agreed to go in. Our service is funded by the government and managed by the executive director and we receive a stipulated hourly pay. It’s kind of like being duty counsel. We go in, we do a day’s work, and we leave. There’s no ongoing contact with the clients. They are clients of the mediation service, and the executive director is the one who is accountable to the client. We do the mediation, write the report, and leave.

Many of our clients are referred by judges. Often the parties are close to trial, and the judge feels that the case is capable of settlement and that trial would be a waste of resources, so the parties are sent down the hall to try mediation. Other clients are self-referred – their friends have told them about it, or they were in court and decided to see what it was all about, or they found us online; others are referred by lawyers, Children’s Aid Society caseworkers, or other professionals.

The vast majority of our clients are self-represented, but a few come to mediation with their lawyers. Typically lawyers come in when it’s impasse mediation – they’re really close to trial and they feel they can help keep the process streamlined. But I think most lawyers and I prefer it when they’re not there. There are many helpful, settlement-oriented lawyers, but others can become very positional; they may just want to advocate as opposed to exploring ways to work things out.”

What it’s like to have a private family mediation practice

“The vast majority of clients in my private practice come in shortly after they’ve decided to separate, either before they’ve seen lawyers, or after they’ve had a one- or two-hour consultation with a lawyer. They’ve chosen mediation as an alternative to the traditional model of negotiating and/or litigating using lawyers. At the end of the mediation process, I strongly recommend that each client go to a lawyer for independent legal advice. Even if the parties have reached a full agreement, they never sign anything with me. If they want to go off alone and sign my draft document and call it a separation agreement, there’s nothing I can do to stop them, but I strongly discourage it, and I indemnify myself by having them sign a retainer agreement stating clearly that they can’t sue me for damages incurred as a result of their failure to see a lawyer. So while lawyers are often involved at the end to advise their clients on the fairness of the draft agreement, it’s rare for lawyers to be involved in the actual mediation process with their clients.

Clients report choosing mediation for a variety of reasons: They want to save time and money, they wish to preserve a dignified co-parenting relationship – which they recognize is very hard to do with two adversarial lawyers sniping at each other all the time – and they don’t want outsiders interfering in what they believe should be their private business. Consumers are becoming more educated, and they question the value of traditional processes where those processes may not be necessary in their particular circumstances. They are wary of lawyers who take a ‘one-size-fits-all’ adversarial approach and are looking for more satisfying alternatives.

I’d say 75% of my clients come in at the very beginning of their separation. They still live together in the same home and they want to tie everything up before they part ways. And 25% are somewhere farther along in the process. I’ve had people come in after they’ve been to court, after they’ve been through lawyers, after they’ve spent $100,000 each, and they realize they haven’t achieved much in the way of tangible results.”

Rosanna’s Other Projects and Goals

“I have a conflict resolution page on Facebook (www.facebook.com/conflictresolutionforeveryone), and I am very interested in the possibility of writing a book. That’s definitely a longer-term goal. People approach me on a daily basis to ask, ‘What’s the most common cause of divorce?’ or ‘Is there something I should be doing to make sure that it doesn’t happen to me?’ People are really worried about this. Even people who are happy – they want to know what they can do to make sure their relationship survives.

I’ve learned a lot. I feel like a therapist sometimes. I think that one of the reasons mediation is so much more effective than traditional family law processes is that clients feel like they can vent to someone who cares, and who will listen. They are able to feel heard and understood, and once they get their feelings off their chest in our initial, individual meetings, they are able to switch gears and focus on the resolution of the legal issues in the joint sessions. Court does not afford that opportunity, and sadly, many litigants spend years in the system chasing it, in vain.”

Rosanna’s early choices and how they’ve led her here

“I like to joke that as far as my parents were concerned, there were only two viable career options for me: doctor or lawyer. And I hated science. I had a B.A. in psychology and I was really vacillating between law school and continuing my studies in psychology and becoming a clinical psychologist. I was truly conflicted, found both options equally appealing, and kind of flipped a coin. In a way, I always regretted not pursuing psychology, but mediation is a nice hybrid of law and psychology, so it all worked out well in the end.

When I decided to go to law school, I was 22 years old. In retrospect, I was too young and too lacking in self-awareness to realize that it probably wasn’t the best fit for me. Law school was interesting, but by the time I finished articling with a firm that specialized in commercial litigation, it was clear that this was not for me. I’m not aggressive. I’m not adversarial. I’m very calm and laid-back. I didn’t like the politics in law firms, nor could I accept the fact that you basically had to pledge your entire life to them. Clearly, the definition of success in the profession was clocking 80 billable hours a week and devoting yourself 100% to your job. That wasn’t really my definition of success.”

After articling, Rosanna started a small firm with her husband and switched to a different practice area

“I learned a lot from my articling experience. It certainly wasn’t all negative – not even close. I enjoyed the substance of the work, but not the fact that I was expected to devote myself to that firm, nor the fact that I had to fake a more aggressive personality to fit in. I embraced the work fairly cheerfully that year, because it was a rite of passage and because I saw it as a great learning opportunity, but I had no life. I was newly married but I barely saw my husband. I didn’t have any time to think about what I wanted to do. I finished my articling year, completed the bar admission process, and said to my husband, who was a sole practitioner doing family law, ‘Why don’t we join forces and have our own firm?’

And he said, ‘You just finished articling. Are you really ready to be self-employed?’ He’s a little older than I am, and it had been a really tough slog when he had decided to become self-employed. We were both thinking that if we did this, we were going to be broke for a while. That it would be really hard for me to go into practice with pretty much no experience. So we weren’t really sure, but he said, ‘Let’s give it a try,’ and we did (and we were, indeed, borderline broke for a little while, but fortunately, that didn’t last too long).

The opportunity was there; I seized it. I still wasn’t sure I wanted to be doing litigation, but it was family law as opposed to commercial litigation, and I liked working with these clients so much better. They might come in crying, with their lives falling apart, despondent and so unsure about their futures. And I was able to fix things, at least in terms of their kids and their finances, and put them on a path where they could close that painful chapter of their lives and move forward. In that sense, the work was very rewarding.”

How Rosanna became interested in family mediation

“I still didn’t love the litigation side of things, but I liked working with people and helping them resolve their issues, and that’s what made me decide to transition into meditation: realizing that separation was really about human emotion first and the law second. It’s fairly easy, once you’ve practised law for a few years, to look at a case and figure out what a reasonable outcome might be. But it’s hard for clients to get from Point A to Point B because they’re so emotional. They’re hurt and devastated and angry. In mediation, you hear one client’s perspective, and then you hear the other client’s perspective of the same set of events, and they’re so completely different. You wonder, were they living in the same marriage? Are they describing the same set of events? So much comes down to interpretation and perception, and that’s why many of these cases go to trial – because people can’t agree on what actually happened. And they’re really wrapped up in blame and fault even though those concepts really are irrelevant in the legal system. That’s what most clients instinctively focus on.

Mediation gives clients a chance to express their emotions, get things out of their system. Once they do this, they recognize the value of having closure and moving on with their lives. It sounds so simple – it is and it isn’t. It’s not like we have our meeting and everything is wonderful and fine after that. They still fight and argue and have problems, and sometimes have to return to mediation to iron out residual conflicts, but at least they save themselves going through the legal process and all that it entails.”

The transition from family lawyer to mediator

“I was back at work after having my first two children. I was really only working a 40-hour week while they were at school and daycare. So I wouldn’t say I was working full-time according to the standards of our profession, but I’d say I was working a pretty full week by most people’s standards. Once I decided that I wanted to transition to a mediation practice, I squeezed in the mandatory courses by taking a few days off here and there until I had finished.”

Accreditation

“Although family mediation is an unregulated profession (meaning that it is desirable but not mandatory to have objective qualifications, such as accreditation, in order to call oneself a mediator and open a practice), most consumers would probably be reluctant to hire a mediator who has not been accredited (much as they would be unlikely to choose a self-styled ‘therapist’ without some sort of recognized training). Accreditation by the Ontario Association for Family Mediation entails taking a basic family mediation course and an advanced family mediation course, each of which is about four days, followed by a supervised internship, which is 100 hours under supervision. I chose to pursue accreditation, completing these courses and two internships. One was a private intern-
ship and the other was a court-based internship, which took place at the court at which I’m now working as a mediator. The court-based internship involved attending at the on-site clinic one day a week for about nine months and working on real cases under the supervision of accredited mediators. For the private mediation internship, I went to the mediator’s office and shadowed her on a case. I think there were about four or five meetings with that couple, and that whole process happened very slowly. It took about nine months to a year to finish both internships, and then I applied for and received accreditation through the Ontario Association for Family Mediation.”

Rosanna also earned an LL.M.

“I also went back to school and did an LL.M. in Alternative Dispute Resolution [part-time] because I wanted to deepen my understanding of conflict theory, further hone my skills, and give my practice a competitive advantage.

I found my studies to be extremely interesting and practical, but I think that part of the reason was that I’d already been practicing for several years. I think that a lot of the material would have lacked context for students who came in not having that experience. For me, it was a wonderful growth experience as well as a confidence builder. The theory I absorbed has allowed me to take my practice to a deeper level as I feel much better able to look beyond what clients are saying and understand on a more instinctual level what’s not being said, what’s driving the positions that they’re taking, and how to get beyond impasse.”

Building a mediation practice

“It’s very challenging to build a client base even when you have accreditation. Many mediators start out working on the court roster, which is what I did. In terms of building a private practice, it was all word of mouth. I was involved in so many different communities, through my kids’ school, through the neighbourhood, through personal contacts, through the profession. Through osmosis, people just became aware that I did this kind of work and started referring people to me. Eventually, former clients began to refer their friends. But it was a very slow process, a very slow transition. To be honest, I wouldn’t have been able to just quit the legal profession and restrict my practice to mediation without the financial support of my husband. Unfortunately that’s the truth. But the timing was right; our kids were young, he was able to keep the family going financially, and it made sense for me to cut back on work temporarily to be there for the kids (we eventually wound up with three – so managing our family life was almost a full-time job in itself). We were able to be patient and give it time. Colleagues who were not in that position, who were the sole or primary breadwinners in their family, or who could not afford to take a pay cut, found that they had to continue practising law or pursuing other employment while also trying to build a mediation practice. It’s a competitive field and many of my colleagues have found it very frustrating trying to build a practice.”

Trade-offs

“Over time I’ve managed to build a busy enough practice, and it’s become much more lucrative. I definitely held back for many years on marketing and networking due to my personal circumstances (and am still doing so to some extent), so I don’t know whether and how things would have been different if I’d given it my all. At the rate I’ve been going, it’s taken me about eight years to get to the point where I’ve been able to match the income I earned as a lawyer. My income is objectively very good but not great compared to what I could have earned as a lawyer, but again, that is due in part to the personal choices I’ve made and the fact that I’ve prioritized part-time work over career ‘success’, as that term is generally defined by Bay Street.

Success, and what’s important, is different for everyone; given my own goals and values, I do feel that I’ve been able to make a success of my career while also finding success in my personal life. But it’s definitely been a challenge to make this happen.”

What motivated Rosanna to become a mediator

“I mentioned earlier that litigation wasn’t for me. In part, this was a function of my personality, but to a large extent, it was because I never really bought into the family law ‘system’. Like an atheist forced to attend religious services, I could fake it pretty well but could never bring myself to participate wholeheartedly. On a philosophical level, I couldn’t do it anymore because I felt I was contributing to everything that was wrong with the system instead of trying to do something to make things better, at least for the few people I was coming into contact with. It was really this existential angst, and the fact that I was lucky enough to have options, that caused me to make the change. Having more time to spend with my kids was certainly a huge impetus for change, but I could have done that by, for example, becoming a teacher. So my kids were not the ‘reason’ I left the legal profession; it was more about doing work that I found meaningful, that would also give me the level of balance I wanted for our family.

I think that my discomfort with the court system was something I’d always felt but tried to deny. Over time, it just became something that I could no longer deny. I just didn’t believe in it. I was doing the work, and I was good at it, but I just kept thinking, ‘Well, I won that motion, but how is that good for my client? Now she hates him more than ever. How is it good for the kids that the parents can’t even speak to each other?’ Even though I was ‘successful’ in terms of winning enough of my cases, I was struggling with the big picture and wondering what I was doing.

I just found the system so obsessed with forms and rules: It often seemed so picky and arbitrary, and rules- and rights-oriented. And the clients were sitting there crying, feeling like they had no control over their lives. I think I recognized my feelings from Day 1 and tried to work around them until I could no longer live with the internal conflict.”

The difficult parts of family mediation

“Sometimes it can be a bit boring dividing up people’s assets and figuring out how much spousal support somebody gets and who’s going to have the kids for Christmas. But I like the challenge of meeting spouses who can’t see each other’s point of view and helping them get to a place where they can not only see each other’s point of view, they can put aside their own self-interest and do what’s best for the whole family and within 12 hours walk out of there with a deal and avoid litigation.

I really derive satisfaction from helping people avoid those outcomes. I do six hours, non-stop, with each couple. That’s how I structure my day. Six hours of watching people cry, hearing people yell at each other, breaking up arguments. [It can be] exhausting and emotionally draining.

But you know, they often say, ‘If only we’d had this conversation 5 or 10 years ago, we might not have wound up here.’ And they’ve said it so many times that now I’m thinking, ‘Hmm, maybe I should take another step back and go back to my roots and become a marriage counsellor.’ I’m seriously considering it – after the book [laughs].”

Rosanna’s advice for lawyers considering a career in family mediation

“Anyone considering a career in family mediation would have to think long and hard about whether they would be comfortable with self-employment. There are really very few jobs in mediation out there, unless you find something in HR or government. Being on a roster at a family court can provide good steady work, but the pay is much lower than in private practice. So an aspiring mediator would have to ask him- or herself a few important questions. Number 1, what are your income aspirations? Number 2, are you comfortable with self-employment? Number 3, are you comfortable with the fact that you may not reach your income target for a few years, or ever? And if that’s the case, do you have something to fall back on, such as a concurrent career, savings, or a spouse or parents who can help out? Number 4, do you think you’re going to burn out being around seriously unhappy and/or hostile people all day long, every day? Are you going to be OK with not getting a lot of positive feedback, because you’ll generally be working without colleagues, and the clients are often too wrapped up in their own negative emotions to recognize your work?

I think that in order to enjoy a career in mediation, you have to have a high tolerance level for work that can often feel thankless. You also have to be able to handle working alone (not counting the clients!), because it is a very lonely type of practice. You sit with your two clients for six hours, and you leave. On my off-days, I spend a lot of time at home writing reports, and it can be really lonely. People who value a more social workplace and need to be around colleagues would probably hate this work! I don’t mind this aspect of it, because as soon as the workday is over I pick up my kids and have tons of people to speak with as I ferry them around to their activities … it makes up for the isolation of the workday.”

Considerations about getting accredited as a family mediator

“I feel, as do many consumers, that it’s essential, if you want to be a mediator, to be accredited by the OAFM or a similar organization. If you aspire to obtain a position on a court roster, accreditation is an absolute must.

But there are mediators who aren’t accredited and still get work. Those tend to be middle-aged or older lawyers. People refer cases to them all the time, and respect them because they’re incredibly experienced and know the law. But they’re more evaluative. It’s a different style of mediation, one which I think is closer to arbitration. So lawyers will come in with their clients, and the mediator will say, ‘Here’s what I think. The Supreme Court decided this, and the Court of Appeal decided that, and this is what the outcome should be’, and you’re done.

I don’t do it that way. My approach looks like more of a hybrid between an evaluative process and a facilitative process. It’s more about orchestrating and managing a conversation where people discuss their larger needs and goals and find their own fair solutions within a reasonable legal framework. We ‘bargain in the shadow of the law’, but we also discuss the emotional issues that get people so ‘stuck’ that they can’t resolve things on their own, and help them move forward. This is particularly important where the parties need to co-parent in the future; it’s essential for them to receive support around future communication so that they optimize their chances for successful parenting.”

Considerations about getting an LL.M. in ADR

“I don’t know whether the degree resulted in increased earnings. I think it gave me confidence and a greater depth of knowledge and skill. It may give me increased credibility with potential clients. Sometimes I’ll mention it if someone’s calling about a potential mediation and I need to market myself a bit. I think it may set me apart from other people. I’m glad I did it, but would I recommend it to other people? It depends on their goals, skill level, experience, commitment to the field, and financial situation. It was very expensive. It also entailed a huge amount of work, although I found it manageable since the courses were structured as intensives and were only four or five days each. The research papers were much more time-consuming, but we were given a generous amount of time in which to finish them.

Anyone thinking about doing it would need to ask him- or herself, ‘Do I enjoy research and writing, or would I consider that a form of torture?’ And if you’d enjoy it and can afford it, great. You’ll learn a lot and probably feel much more confident in your skill level at the end. But I don’t think there are any guarantees that it would raise your profile or increase your income.”

Her view on family mediation as a growth area

“I think more members of the public are becoming educated about it, but a lot of people still don’t understand it. A lot of people still think that it’s marriage counselling or a form of yoga! I think a lot of PR work needs to be done to raise the profile of family mediation. Because it’s not regulated, it’s tricky: who does the marketing? What kind of credibility do they have? How does a member of the public know that a particular mediator is going to be qualified? So I think that as a profession, we have a long way to go. But as the public becomes increasingly disenchanted with the family court system and fed up with lawyers’ fees, they will continue looking for alternatives. There is never any shortage of separating or divorcing couples, and they all need support. Mediators provide exactly the kind of support that many people are looking for. They just have to find us, and we have to reach them. And it’s happening; slowly but surely, I do see the tide turning. So I’m optimistic that this will definitely be a growth area in the future.”