|
RobsLuv
|
 |
« Reply #3 on: February 16, 2009, 02:19:45 pm » |
|
Hi Smart - The ADR conference is an attempt to resolve the reason the file was refused without having to go to a full hearing. It is like a "mediation" instead of a trial. Minister's counsel is there, as well as the appellant and his/her counsel, and a mediator or facilitator who is supposed to make a recommendation to Minister's counsel after everything is discussed as to whether or not they think the appeal would be allowed at a full hearing. If so, it's in everybody's best interest to just allow it at the ADR stage - basically to avoid taking up the Court's time. The applicant is not allowed to attend the ADR conference, and no witnesses or people who can "help" the sponsor are allowed. The only person there to "help" the sponsor is his/her counsel, and that can become a problem (see below).
Unfortunately, Minister's counsel has all the power at ADR - and that's what nobody tells you. They can simply decide NOT to allow the appeal, even if the mediator recommends it. Apparently the sponsor's attorney is not there to make argument - all "discussion" happens between the sponsor and Minister's counsel, so the sponsor needs to be VERY aware and prepared to consult as often as necessary with their attorney for direction, and the attorney better be prepared to give sound direction. If that doesn't happen, Minister's counsel has a distinct advantage and will take control. KNOW what is expected, and what can happen, before you go in or you'll get stomped on.
If your case goes to ADR and is not resolved there, you still have the option to go to a full hearing and none of what is said at the ADR conference can be repeated there. At the full hearing there is a judge and/or a panel (I'm not exactly sure how this works as we've not gotten to that point yet), and you can call witnesses, etc. The applicant can also attend, to tell their side of the story. Unfortunately, getting a full hearing date takes a long time, and that's frustrating as it's usually already been a year before you get to the ADR stage. But it seems that most attorneys try for the ADR first, and don't ask for a date for a full appeal hearing until an ADR has failed. I don't know if this is how it has to happen or not - it just seems that's been everybody's experience. We were initially told, by our lawyer, that the ADR would take about 6 months and that we could absolutely expect our appeal to be allowed as a result. It took a year to get to ADR, and then Minister's counsel refused to allow the appeal. So now we're back to waiting again, having accomplished nothing.
As far as fees - the attorney's determine their own fees. Some attorneys will charge a rate for preparing for the ADR conference, and appearance at that conference, and then they'll charge additional fees if you have to go to a full hearing. But that can result in a conflict of interest. Obviously, they make MORE money if the case is not allowed at the ADR level and they "get" to represent you at a full appeal. Other attorneys, I guess, charge a flat fee that's much higher . . . and then they make their money whether you go to a full appeal or not. Obviously, it's in the best interest of those attorneys to try to get your appeal settled at ADR, because it's less work for them and they make the same amount of money either way . . . but you pay, basically, for full appeal representation even if you don't have to go there. Either way, the majority of attorneys are in it for the money . . . don't ever let yourself think they actually care about helping you. If you find one who does, you're lucky indeed.
|
Immigration Forum
