Early Resolution and Advocacy Strategies in the Immigration Appeal Division
By Peter Wong QC, Caron and Partners LLP
This paper is written for the Canadian Bar Association National Citizenship and Law Conference
to be held in Halifax on May 15th, 2010 for the panel discussion on the topic of IAD early resolution
(ADR) and advocacy strategies for ADR. The subject of ADR and ADR advocacy strategy is broad as it
covers a number of different types of ADR processes that have evolved out of the Rules of the IAD and
various projects and initiatives that the IAD has implemented over the past few years. Actual practice
of these types of ADR processes has evolved very quickly as counsel who practice frequently in the IAD
have seized upon these processes and developed excellent advocacy practices to help Appellants to
achieve their goal of a successful resolution of their appeal more quickly, or alternatively to identify
those cases which ought to be abandoned. In this paper I will cover a general overview of different
types of ADR processes, and discuss different types of strategies that have been applied for different
types of IAD cases, including marriage, medical inadmissibility, financial sponsorship, and criminality
appeals. Finally I would like to conclude the paper with some of my own thoughts concerning best
strategies for advocates, and ideas to improve these constantly evolving area of law.
Firstly, I believe that ADR is a very positive approach to dispute resolution in the IAD for a
number of reasons:
1. The resolution of an appeal matter at the earliest possible time reduces the stress, anxiety and
unhappiness of appellants and immigration applicants. This is particularly the case where
backlogs have grown significantly due to a shortage of appointments of IAD members, and
general increase in the number of appeals.
2. The ADR process propels the disclosure of relevant documents by appellants, which also assists
counsel in identifying issues at an early stage in the appeal process.
3. Appellants are given an opportunity to discuss the issues of the appeal in a less formal setting,
and even if the case is not resolved counsel has the opportunity to learn about the character of
their clients and how they will perform under oath in a full hearing.
4. The Minister’s position is often identified in an ADR through their questioning and reasons given
for final decision to advance the matter to a full hearing.
5. The Dispute Resolution Officer can provide both the Minister and appellant’s counsel with a
different perspective of the case that can help shape the resolution to the case.
6. Ministers Representative and Appellants Counsel can gain a better insight into each other’s
views concerning the particular case and overall thinking in terms of similar types of cases (ie.
When will Minister’s counsel generally consent to a stay of deportation in a criminality case).
Full exchanges of each other’s thinking are less likely in the adversarial proceeding of a full
hearing.
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The only downsides that I can think of to an ADR are:
1. As a wasted opportunity to resolve the matter at an early stage if counsel and their clients come
unprepared. Clients who are taken by surprise as to the issues and questions that are asked of
them, quickly become disillusioned with their counsel and engage new ones.
2. Appellants can become disheartened and abandon a hearing well before they should if their
expectations of an early resolution are too high.
3. It can devolve into a fishing expedition for Minister’s counsel, with little if any prospect for real
resolution, just a gathering of ammunition for a future hearing.
Legal Basis for ADR
The IAD Rules make provision for the Alternative Dispute Resolution Process. Rule 20 of the
IAD Rules state as follows:
Participation in the alternative dispute resolution process
20. (1) The Division may require the parties to participate in an alternative dispute resolution
process in order to encourage the parties to resolve an appeal without a hearing.
Dispute resolution officer
(2) The Division must assign a member of the Division or any other person to act as a dispute
resolution officer for an appeal that uses the alternative dispute resolution process. A member who
acts as a dispute resolution officer for an appeal must not hear that appeal.
Obligations of parties and counsel
(3) The parties and their counsel must
(a) participate in the alternative dispute resolution process in good faith;
(b) follow the directions given by the Division with respect to the process, including the manner of
participation;
(c) disclose to each other and the Division any document to be relied on in the process, and any
document that the Division requires to be prepared or disclosed; and
(d) be prepared as a party, or have authority as counsel, to resolve the appeal.
Confidentiality
(4) Any information, statement or document that any person gives in an alternative dispute
resolution process is confidential. It must not be disclosed later in the appeal or made public unless
(a) it was obtained in a way that was not part of the alternative dispute resolution process;
(b) it relates to an offence under the Act, or a breach of these Rules; or
(c) the person who gave the information, statement or document agrees to its disclosure.
Agreement
(5) An agreement to resolve an appeal that is reached through the alternative dispute resolution
process must be in writing, signed by the parties or their counsel and approved by the Division. An
agreement to resolve an appeal is not confidential under subrule (4).
Several elements of Rule 20 are worthy of commentary as it sets out the basis for the practice that
has evolved. Firstly, I note that the IAD has the power to compel parties to participate, in that the rule
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states clearly: “The Division may require the parties to participate in an alternative dispute resolution
process in order to encourage the parties to resolve an appeal without a hearing. “ Generally the IAD
screens cases after production of the Minister’s Record either on its own initiative or at the request of
counsel and if it deems appropriate provides both parties with an ADR notice confirming that it is an
appropriate case for the ADR process to be engaged. Although it appears mandatory for participation
in the process either party can easily opt out of the process by providing a letter to the IAD stating that
they wish to do so. In the case of the Minister’s Representative opting out, it is highly unlikely that
compelling the Minister to attend would have any beneficial effect on the case, and may in fact engage
the negative factors that I have referred to above, so in my view, opting out should be respected by the
opposing party.
Secondly, the formal process of ADR involves a Dispute Resolution Officer. (“DRO”) Currently in
the Western Region this person is a tribunal officer, who is not a board member of the IAD . It cannot
be the person who ultimately hears the case, as that would breach the confidentiality of the ADR and
also fetters the process as Appellants may feel constrained from speaking freely if they know that their
words can prejudice the ultimate decision maker in a later proceeding. The current role of the DRO is
the following:
1. To explain the nature of the ADR to the Appellant, including the procedures, its confidential
nature, the possible outcomes and answer any questions that the Appellant or other
participants may have.
2. To caucus with any of the parties involved to provide their views of ADR.
3. To help clarify or raise questions that are supplemental to the Minister’s Representatives
questions.
4. To share their own views of the evidence with the Ministers Representative and to hear the
Ministers Representatives views in an effort to determine whether there is a basis on which to
settle the case without the need to go to a full hearing.
Thirdly the obligations of the parties and counsel are set out in Rule 20(3) which requires
participation in good faith. The good faith requirement is essential to the process as both
Ministers Counsel and Appellants Counsel can subvert the effectiveness of an ADR by coming to the
ADR with rigid views of the likely outcome and simply elicit information that would reinforce this
view. For example, if Ministers Counsel has decided that the credibility of the Appellant is at
serious issue before the ADR, then simply using the ADR as a forum to aggressively cross-examine
the Appellant, for the sole purpose of gaining ammunition for the later hearing, would not, in my
view be participation in good faith. On the other hand, if during the course of non-adversarial
questioning, it appears that the Appellant lacks credibility, that would always be a ground that the
Ministers Representative could cite as a reason why the matter should proceed to a full hearing.
Needless to say Appellants counsel would not be approaching the ADR in good faith if they were
coaching specific answers that were misleading or disingenuous, solely with a view to “winning”.
Fourthly, the requirement to disclose all documents prior to the ADR, is helpful in avoiding
surprises in the process until the eve of a hearing itself. The normal practice before an ADR is to
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allow documents to be disclosed 10 days prior to the ADR, which is a shorter timeframe then the 20
days provided by Rule 30(3). Although ADRs allow for confidentiality and return of the documents
if the ADR is unresolved, I find it difficult to imagine a document in an ADR which would not be
useful as a disclosure in a full proceeding. It is simply more practical to prepare the full disclosure
of documents that would be used at the full hearing prior to the ADR, and if the ADR does not
resolve the case, then confirm that those documents would be the same disclosure that would be
used at the full hearing of the matter.
Early Resolution of Cases by Paper Hearings
Paper hearings are a process by which the IAD requests that parties provide written submissions
on a particular point, often jurisdictional or legal in nature, which would be dispositive of the
hearing. Authority for this type of proceeding can be found in Rule 25 of the IAD Rules:
Proceeding in writing
25. (1) Instead of holding a hearing, the Division may require the parties to proceed in writing if
this would not be unfair to any party and there is no need for the oral testimony of a witness.
Exception
(2) Subsection (1) does not apply to an appeal against a decision made outside Canada on the
residency obligation.
Examples of types of cases streamed in paper hearings include:
1. Removal order cases where pursuant to section s.64 of IRPA there is no jurisdiction to hold
an appeal due to grounds of security, violating human or international rights, serious
criminality or organized criminality. Serious criminality is further defined as a crime that
was punished in Canada by a term of imprisonment of at least two years. A typical
example of a case that would be streamed into a paper hearing is a term of imprisonment
may have been two years or more but the Appellant who is fighting to retain permanent
residence files an appeal. There are situations where it is unclear where there is a right of
appeal, where the sentence imposed for a criminal conviction may be a combination of
sentences of multiple charges rather than a single conviction that extends beyond two
years. Therefore a paper hearing would be appropriate to determine whether the IAD had
jurisdiction in the face of a permanent resident who had been convicted and sentenced to 2
or more years of imprisonment.
2. A second type of case commonly used for paper hearings where there is a sponsorship
appeal filed, and the subject applicant does not fall within the membership in the family
class or is not a dependent. For example, if a Sponsor files an IAD appeal pursuant to
s.63(1) of IRPA for sponsorship of parents pursuant to the Family Class, a paper hearing
could be requested if there is a strong indication from the record that the persons who are
being appealed for are not the biological or legally adoptive parents of the Appellant. The
Minister may have requested DNA evidence or received DNA evidence and with that as part
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of the record, the Appellant may be requested to respond to the argument of why the IAD
should engage its legal or equitable jurisdiction, if the applicant is not really a member of
the family class at all. Paper hearings could be convened where the Appellant tries to
engage the jurisdiction of the IAD in the deletion of a dependent of the person who is a
member of the Family Class (ie the son or daughter of the parents), as the IAD has no
jurisdiction to deal with a deletion, a paper hearing could more efficiently dispose of the
matter without the need to convene a full hearing of the matter.
3. A third type of case where paper hearings may be used, where there is a specific issue of
law, either Canadian or foreign, which may be determinative of jurisdiction. These are
commonly issues of legal marriage or legal adoption, where given a set of facts that are
disclosed on the Record of the visa office it may be clear that the Appellant or the Applicant
is not legally married, or legally adopted as the case may be. Therefore a single issue of
law or mixed fact and law could be raised on a preliminary basis which if cannot be
successfully established by the Appellant could end the appeal without a further
determination of any of the other facts or of humanitarian or compassionate factors. The
IAD may not engage its equitable powers to relief from the negative decision of the visa
officer if the parties are not legally married in accordance with the laws governing the
jurisdiction of the marriage, and have not established a legal common law relationship.
The advantage of paper hearings are significant in helping the IAD control the number of
cases that really need to be disposed of at a full hearing. It is a waste of hearing time, and
energy for all involved if a preliminary issue of jurisdiction trumps the entire case, and if there is
no chance of overcoming the jurisdictional issue for the Appellant it would be much better for
all parties concerned if the IAD would deal with the issue at the earliest possible time so that the
Appellant could either attempt other solutions to their problem or simply get on with their lives.
The advantage for both parties counsel is that a paper hearing helps them to focus their
efforts on where it should be initially, which is to determine whether they are in the correct
forum, with a case which will be heard fully on both legal and equitable grounds. For counsel
unfamiliar with IAD practice a paper hearing notice which identifies the preliminary issue to be
disposed of can save a lot of effort in preparing the case where there is no case.
Early Informal Resolution
There is no formal process for an early informal resolution before a full ADR is screened and
scheduled. However, there is an opportunity for either parties counsel to work with the
opposing party to identify a case which may be resolved by communication between the parties.
Examples of this type of EIR process include medical inadmissibility cases, sponsorship cases that
are based upon the inability of the sponsor to meet the Low Income Cutoff (also known as
Minimum Necessary Income), simple criminal inadmissibility cases that have a single issue to
resolve are all cases which may be resolved by communication between counsel.
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If Appellants counsel identifies a case that might be resolved by bringing the resolvable
issues to the attention of Minister’s Counsel, then a good approach would be to prepare the
disclosure necessary to help resolve the case and then send over a letter identifying the issue.
If these are disclosures that would be used in the proceedings in any event, and the
identification of the issue would not prejudice a later hearing of the matter before the IAD in a
full hearing, then copying the Registrar of the IAD in on the submission and disclosure is a
reasonable practice, although there is no obligation to do so in such a EIR.
For example, in the case of medical inadmissibility, Appellant’s counsel may wish to
establish that the cost of the health care is not particularly onerous, or the likelihood of
deterioration of the care is not significant, or there is significant efforts made by the family to
deal with the cost of the health care privately without access to the public system. Whatever
the argument that is being put forward, medical evidence, including experts reports, financial
information, statutory declarations of support, and costing of treatment can be gathered at a
very early stage and presented as disclosure with a detailed submission concerning why the case
should be allowed in advance of any hearing. This approach has been used to great benefit of
Appellant by counsel in the Western region of the IAD, including former Member of the Board
Andrew Wlodyka who now practices as counsel for the Appellant at the IAD.
As there are no formal rules of evidence or procedure in EIR, one is only limited by IAD rules
as they relate to evidence and the bounds of reasonableness and ethical practice, in the
disclosure of documentary evidence, expert evidence and counsels submissions that may even
include a summary of the evidence that would be presented at a full hearing. Minister’s
counsel can choose to accept that information as being credible or reject the submission and
bring the matter to a formal ADR (an oxymoron for sure) or a full hearing. Counsel’s success in
using these procedures depends in large measure on their reputation for fair conduct and
critical examination of the evidence before putting it forward for EIR. Counsel who get a
reputation for just putting together whatever information they can get their hands on, without
examining the veracity of the evidence may find far less success in EIR than counsel who develop
reputations for being fair-minded, critical of their own case, and balanced in their outlook.
In EIR initiated by the IAD, one can expect that a letter would be sent by the Registrar or
Tribunal Officer requesting submissions and documentation on a specific issue or set of issues
screened by the Tribunal Officer as preliminary, or as dispositive of the Appeal. A timeframe of
3 weeks is generally accorded, although there is likely no difficulty in requesting additional time,
particularly if expert evidence is necessary. The submissions and evidence is then sent both
to the Minister’s Counsel and the IAD on a concurrent basis, and the Minister’s Counsel then has
14 days to respond, with a final reply from Appellant’s counsel in 5 days, if they choose to have
the last word. IAD initiated EIR is often used in sponsor’s income appeals, and other relatively
simple cases that can be resolved on documentary evidence without need to resort to full
hearings. Such a process is clearly more time and cost effective. Although it does not
necessarily cut down on the amount of work that counsel needs to perform to have a case
resolved, it just front end loads it.
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Alternative Dispute Resolution
ADR as a more formal process is generally initiated either by the IAD through a letter by the
Tribunal Officer indicating that the case has been screened and is deemed appropriate for the
Alternative Dispute Resolution process. Then a second letter is issued, or counsel can phone,
and a date is set for a basic 1 ½ hour hearing. ADR can also be initiated by either party by
submitting a letter to the Registrar requesting an ADR and providing reasons for the request.
If appellant’s counsel is initiating the ADR then there should be submissions in respect of the
specific issues raised by the visa officer in the refusal, and accompanying documents that would
assist in establishing the case to be made in the ADR. All documents to be used in the ADR
should be provided to the opposing party and to the Registrar of the IAD 10 days before the
meeting of the parties.
The IAD provides specific guidance in respect of issues to address for different types of
IAD cases that are commonly before the Board. For example, in respect of spousal sponsorship
appeals, the Board on its website irb-cisr.gc.ca provides specific information in respect of what
issues to address and what documents to provide in that type of a case:
“At a hearing or an ADR Conference, you should try to show:
How you met your spouse or partner and how your relationship developed;
How long you have known your spouse or partner;
The circumstances of your marriage or common-law/conjugal relationship, including the
knowledge and involvement of your families;
What you did after you got married or started your conjugal relationship, including what
contact you have had with your spouse or partner;
What you know about each other;
What you plan for your future together; and
Any other information that may help your appeal
You should come prepared to deal with all of the reasons the CIC officer gave for refusing your
spouse’s or partner’s application.
Some of the important documents that would be useful to bring to a hearing or an ADR
Conference would be evidence such as letters, telephone bills, photographs, videocassettes, airline
tickets, passports, receipts for gifts or money sent by either spouse or partner, etc. If the written
information or documents that you want to use were not already provided to the Immigration Appeal
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Division or Minister’s counsel, then you must provide it no later than 10 days before that ADR
Conference.”
(irb-cisr.gc.ca/eng/tribunal/iadsai/adrmar/Pages/guide_mariage_add.aspx)
At the ADR the basic process is for the Dispute Resolution Officer to outline the basic format the
meeting will take. This will include an explanation of the role of each of the parties, the confidential
nature of the proceeding (that the statements cannot be used in the later proceedings), the ability of
the parties to caucus, who the decision maker will be (Minister’s counsel), the potential outcome of the
proceedings, the informality of the proceedings. After these explanations, the Minister’s counsel will
generally take the role of questioning the Appellant concerning the issues that they feel are relevant to
resolving the case at this stage in the proceedings. Counsel for the Appellant generally takes a less
pro-active role in existing ADR meetings in the Western Region, as the practice is for Minister’s Counsel
generally to take a free reign as both questioner and decision maker.
Although it is important for Appellant’s counsel to be ready for the proceeding, as with any
other aspect of advocacy, it is critical for the Appellant to be ready to engage in an open, honest, wide
ranging discussion with Minister’s counsel. Getting ready for an ADR takes just as much preparation
for the Appellant as a full hearing as the Appellant needs to prepare the following:
1. A good recollection of the basic chronology of the case
2.
3.
4.
5.
A clear understanding of the issues or factors that resulted in the refusal
A clear explanation for the contradictions that are apparent on the face of the record
Good witness habits including answering questions clearly, concisely, and to the point
Making sure the Appellant is familiar with the documentary evidence, the immigration
application and the CAIPS notes of the interview
6. Preparing the Appellant to explain any deviations from the Record to what actually happened (ie
being ready to explain contradictions from what the Appellant will say from the Record that are
not apparent to the Minister – this is very important, as the Minister is often taken by surprise
by new contradictions which can have a significant negative impact on the outcome of an ADR.
On the other hand it can be a powerful tool to bolster credibility if the Appellant is willing to talk
openly about matters that are not apparent on the face of the record. The implication being
that the Appellant is willing to share freely and provide evidence that is both favourable and
unfavourable to their case.
In my view the single most important factor in determining the outcome of an ADR is the credibility
of the Appellant. If the Minister’s Counsel gets the sense that the Appellant is ready to discuss their
case freely and to provide credible explanations for most of the issues that were the reasons for the
refusal than a positive outcome is likely at the conclusion of the ADR. In order to get an Appellant
ready for what can be a very intimidating process of examination counsel will need to spend a
considerable time to prepare the matters listed above.
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One of the most important roles that counsel for the Appellant can play is to determine when an
ADR should not be utilized for attempting to resolve the case. In my view the following situations
should be examined carefully before agreeing to participate in an ADR:
1. Where the Appellant is not ready to answer questions concerning the case. For example, in a
case where the primary issue in a marriage appeal is the knowledge of the parties and lack of
evidence of communication, it may be wiser to defer the case for a full hearing to allow time for
the parties to spend more time together, and for more documentary evidence of
communication to be gathered.
2. Where the Applicant has many contradictions and issues raised in their interview, which could
likely only be dealt with by the testimony of the Applicant.
3. Where the issues are complex in an appeal and would not likely be resolved even if the
Appellant was entirely credible.
4. Where there are numerous issues of a serious nature.
In all of the above situations, bringing the Appellant to an ADR, may simply result in a loss of
confidence by the Appellant which could severely impact the outcome of a future hearing. Better to
save the case for a full hearing, and spend more time preparing the witnesses for the case.
Another important duty of counsel is to prepare the documentary evidence in such a way as to tell
the story of the case in a simple and meaningful way. The following are ways that this could be
achieved:
1. Of course, the rules of the IAD should be followed in that the documents should be
translated into one of the official languages of English or French, and the translator should
swear the proper statutory declaration.
2. The documents should be numbered consecutively.
3. Different types of documents should be organized according to sections, so that phone bills
are one tab, letters are another, etc.
4. Photographs should be organized chronologically, and although not all of them need to be
labelled, there should be enough captions on the photos so that someone flipping through
the photos should be able to get the general sense of what they are depicting.
5. Photographs should be edited to remove duplications, or photos that have no significance
within the context of the issues, as should poor photography. Photos of a naked couple in
bed, are often frowned upon as being proof of nothing other than the shamelessness of the
parties involved. Fraudulent photos of people photoshopped into the picture should also
be viewed critically.
6. Letters, cards and other communications should be reviewed to determine whether the
parties are making sense within the context of the story of the case. Often, fraudulent
cases can be exposed by the content of the communication.
7. Eliminating duplication of documents that show up in the Record as well as the disclosure, if
not properly culled.
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Good disclosure can make an excellent start to an ADR, leaving the Minister’s Counsel predisposed to
trusting that the case is a reasonable one to resolve.
Counsel’s role at an ADR currently in the Western region is fairly passive, with the majority of the
time spent taking notes and wondering whether the Appellant will become unravelled during
questioning. In my view, that role should be expanded, and there are many situations where counsel
should speak in order to improve the potential outcome. For example, if questioning of the Appellant
is becoming quagmired in misunderstanding, counsel could interject with a relevant question of their
own to bring the process back on track. If there are translation problems that are resulting in
information become garbled or worse yet, creating the impression of contradictions where there are
none, then counsel should intervene. While this intervention may be frowned upon at a hearing, the
ADR process without the formality of giving testimony under oath, lends itself to counsel becoming
more proactive. Of course, if the interference becomes perceived as obfuscating the truth rather than
bringing it out then counsel’s active involvement will lose its beneficial effect. So it is best to interject
only when necessary. Counsel should also be proactive in providing their own opinion of the evidence
that is on the face of the record, or if the Appellant has given testimony. That is not to say that counsel
should give the evidence, but to interpret it. For example, if the letters or emails corroborate the
timeline, or the information provided by the Appellant that has been given spontaneously to other
unrelated lines of questioning, it is helpful to the ADR process and the Minister’s Counsel’s resolution to
the case, to draw attention to the fact that these different types of evidence fit coherently with other
types of evidence. CAIPS notes, application forms, Appellant’s statements can all be pulled together
into a coherent whole that makes the case easy to understand as genuine or compelling in some way.
Asking for a caucus between yourself and either the Dispute Resolution Officer and/or Minister’s
counsel is another role of Appellant’s counsel. That caucus could be requested at a critical juncture
where you may feel that the ADR is completely off track to what you feel are the relevant issues. You
would have a difficult time to convince Minister’s counsel of your point of view, but if the DRO sides
with you during the caucus, then there may be an opportunity to make use of the ADR to resolve the
case. If the caucus does not resolve the case, than one can take comfort in the fact that it probably
wasn’t going to be resolved in any event, and you were simply saving your client from further
annihilation.
Reminding Minister’s counsel of the non-adversarial nature of an ADR is another important role of
counsel. This is a delicate process because if Minister’s counsel feels that they are not getting at the
truth, as the decision maker in the case, they simply will not consent. However, from time to time all
counsel will become caught up in the heat of the questioning of a witness, and it is a valid point to make
that the ADR being non-adversarial, will not benefit anyone or resolve the case if it simply devolves into
a vicious cross-examination.
Counsel’s role with their client is critical to the successful outcome of the ADR. The Appellant must
trust that you have properly briefed them, that they are confident they will be able to handle the stress
of the questioning, and that you are on their side and taking care of their interests. In short, they have
to feel that “you have their back”. Counsel can help the Appellant during the proceeding by being
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human, alert to any distress that they may be in, lightening the mood with a joke, or helping to find a
document when they are struggling. In this way, counsel’s supportive nature will help the Appellant
get through this extraordinarily stressful process. A light hearted remark made at the right time, can
be extremely helpful, but as with all comedy, a word of caution: timing is everything. The best way
to prepare a client for an ADR is to talk them through a mock ADR, where you play the role of Minister’s
counsel, and ask them questions that are likely to be asked by them about the case. In this way you
can determine their strengths and weaknesses and give them advice as to what they should take extra
time to prepare for.
Counsel should be prepared in an unsuccessful ADR to be critical concerning the Appellant’s
performance. This includes whether they were making mistakes, being misleading, being unhelpful,
and a whole host of ways of destroying their own credibility. Counsel should then provide that
feedback to the Appellant with a view that the hearing would not result in the same problems arising.
Thus ADR can be viewed as a dry run for the full hearing. Counsel should prepare the Appellant for a
soft landing on an unsuccessful ADR as high expectations can result in extreme disillusionment by the
Appellant.
A final thought concerning the relationship between Appellant’s counsel and Minister’s counsel. If
you practice in the IAD often enough you will spend a lot of time with each other in close quarters.
You may or may not wish to become close or socialize with each other. Friendships do develop
between counsels on both sides of the fence, but that is a personal choice. What is professionally
required is mutual respect between the parties. This respect can only be given if it is received. It can
only be given if the conduct of counsel is ethical and with a greater respect for the IAD and its efforts to
resolve cases with the truth than just trying to win cases. Reputations concerning integrity take years
to develop and can be destroyed in a single case. Your reputation precedes you, and in a close case,
can be the difference in a successful resolution of an ADR. If you have good professional relationships
with Minister’s counsel, they may even ask you what you think about the case in an ADR, and if you are
asked and give an honest opinion within the ethical confines of your duty to your client, it could result in
the case being resolved. A counsel who is not trusted or respected will never be asked.
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