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Ethical Aspects of Lawyer Involvement in Mediation (Program)

Mary Anne Noone, La Trobe University (Australia); Bobette Wolski, Bond University (Australia) (Moderator); Anna K. C. Koo, University of Hong Kong (Hong Kong); and Ellen Waldman, Thomas Jefferson School of Law (US)

Ethical Aspects of Lawyer Involvement in Mediation

Mediation has become an integral part of the civil justice system in Australia and elsewhere. As a consequence many lawyers are now involved in mediation, either as a mediator or as a legal representative for one of the parties to the mediation. These roles raise a host of new ethical dilemmas for lawyers. In this panel discussion, commentators from Australia and the US will explore a number of critical issues for lawyers in mediation including the following:

  • Use of mediation in the civil justice system
  • Roles for lawyers: as mediators; as legal representatives
  • What ethical frameworks govern lawyers when acting as mediators, and legal representatives at mediations
  • Conflicting standards for lawyers acting as mediators
  • Liability and immunity issues for lawyers acting as mediators
  • Should mediators be treated as courts or as opponents? What difference does the answer make?
  • What standards of honesty and candor are owed in mediation (by mediators and by legal representatives)?
  • Are mediators responsible for outcome fairness and if so why, or why not?
  • Conflicting values in mediation.

Mary Anne Noone: Lawyers as Mediators: What Ethical Framework?

In this paper we focus on lawyers who act as mediators. In Australia, lawyers (both barristers and solicitors) commonly act as mediators. Professional legal bodies promote the use of lawyers as mediators. Law societies claim that “with their skills, training and experience solicitors are ideally placed to be mediators”. Individuals are encouraged to use lawyers as mediators because of these specialist skills. In this paper, drawing on empirical research interviewing mediators, we compare the different ethical frameworks for lawyers and mediators. We revisit aspects of the potential liability for lawyers who act as mediators in the context of the continued growth of lawyers who offer a mediation service and an emergent discussion about the ethics of mediators and lawyers acting in mediation. Initially we briefly outline the use of mediation in the justice system, models of mediation and the accreditation system of mediators. We detail the current involvement of lawyers acting as mediators, relevant, sometimes conflicting, professional standards, and potential liability and immunities issues for lawyers acting as mediators.

Bobette Wolski: Where Do Mediators (and Mediation) Fit in the Regulatory Scheme Governing Lawyers? Unexplored and Unintended Consequences of Treating Mediators as Courts (Paper)

Mediation is now an integral component of the civil justice system. The question arises as to whether mediators should be treated as courts, or alternatively as third parties (it seems clear that they should not be treated as clients). In Australia, the professional conduct rules for lawyers provide a possible clue to the answer to this question as they define the term ‘court’ to include ‘mediations’. Unfortunately, it is not clear what is meant by this reference. In this paper, it is argued that rule drafters intended the reference to ‘mediations’ to mean ‘mediators’. If this is the case, then lawyers owe to mediators all the same obligations – including in some circumstances, an obligation of candor - as they owe to courts.

There is another side to this debate. If mediators are considered to be ‘courts’, it may also follow that mediators owe to others (the parties, non-parties affected by the mediation and the general community) obligations to be honest and to ensure fair outcomes. These issues are controversial and in some respects, represent an about-face on the traditional view that mediators are not responsible for outcome fairness. It appears that different answers have been adopted by lawyers’ professional bodies in various common law jurisdictions.

This paper will provide a comparative analysis of the rules of conduct governing lawyers in Australia, the UK, the USA and Canada as they apply to these issues. It will consider the implications of treating mediators as courts or as ‘other parties’. The author will make recommendations for change to the professional conduct rules in some jurisdictions including that of Australia.

Anna K. C. Koo: Regulating Lawyers’ Behavior in Mediation: A Chinese Perspective

Mediation activities have proliferated in mainland China and Hong Kong over the last decade. The Chinese government promoted mediation to maintain social stability for economic reforms, while the Hong Kong judiciary hoped to cure the ills of complexity, cost and delay in its civil justice system. Consequently, lawyers have been increasingly involved in mediation as parties’ legal representatives. Their new role raises important ethical considerations, such as where a client instructs his or her lawyer to attempt mediation for improper purposes, or a legal representative bluffs about the value of the case. The core issue arises as to whether and how the current legal framework and rules of professional conduct regulate lawyers’ behavior in mediation, which is masked by the private nature of the process and the principle of confidentiality. Jim Mason and Bobette Wolski are the latest contributors to this debate, focusing on the jurisdictions in the UK, the US and Australia. This paper examines the general duties owed by legal representatives to their clients in mediation in mainland China and Hong Kong. In so doing, it provides a comparative analysis of how existing legal and professional conduct rules could resolve potential ethical dilemmas in mediation. It concludes by arguing whether rules are the best way to modify the behavior of lawyers.

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