Bobette Wolski‘s recent article in the UNSWLJ makes a valuable contribution to understanding lawyer behaviour in mediation. The article examines lawyers’ obligations in mediation, with reference to the “law of lawyering” – (binding) rules of professional conduct. The way that these are applied (or likely to be evaluated) are also affected by (non-binding) guidelines for lawyers’ behaviour in mediation. Lawyers owe a primary duty to the court/administration of justice, but they are not neutral or impartial between the parties to a dispute. They are partisan service providers to their clients, often in the role of representative or advocate and always in the role of advice giver.The ethical duties to the client are trumped only by the duty to the court. Bobette Wolski looks at how lawyers’ duty to do their work for their client translates into the mediation context.

The focus of the article is on minimum standards that lawyers must meet, as opposed to recommendations for “best practice” or “most effective” strategies in mediation (although in one section the tasks that a lawyer should perform in mediation are unpacked, drawing on a variety of literature). The analysis of professional standards provides an essential background to the development of recommendations about optimal mediation strategy. The analysis also necessarily relies upon the “law of lawyering” set in time. It may be that further common law and/or statutory developments will clarify some of the grey areas that Wolski has grappled with. These include:

• When a duty is owed to “mediation” (where “court” is defined to include “mediation”), to who or what is that duty owed?
• How should the duties of fairness and courtesy be applied in the mediation context?
• Given strong judicial and statutory support for concepts such as “good faith” and “cooperation”, how might lawyers’ obligations to participate in these ways in mediation be interpreted?

A particularly important aspect of Bobette Wolski’s article is her critical examination of commentary about concepts such as “adversarial advocacy”, “zeal”, “advocates”, and “non-adversarial” within mediation (we have explored similar definitions in a previous post). She notes the ongoing challenges of lack of clarity of terms and fragile distinctions, as well as the cavern between idealisation of mediation in literature and training on the one hand, and mediation practice on the other. Meanings matter, and a significant challenge in guiding lawyers’ behaviour in mediation is clarifying the meaning of terms used. Bobette Wolski recommends reconsideration and clarification of terms such as “advocacy”, “adversarial conduct” and “non-adversarial manner” in guidelines for lawyer behaviour in mediation, because of tension between some interpretations of these concepts and the law of lawyering. Her critique of commonly used phrases provides food for thought for the language that we choose, and how we clarify our meaning, in practice, teaching and research.

The article ends with a challenging (and dare I say exciting!) list of suggestions for further research. Perhaps there are some opportunities to collaborate on one or more of these “gaps” in knowledge about lawyers in mediation.

The Australian Mediator Standards Board (MSB) has recently released the revised National Mediator Accreditation System (NMAS).  The revised NMAS will come into effect on 1 July 2015.  It will replace the original NMAS that was introduced in early 2008.  The MSB announced a review of the original NMAS in 2013 citing a desire to improve the clarity and succinctness of the original NMAS, clarify the processes for recognition of experience and non-NMAS qualifications and training, and adjust re-accreditation requirements.

The objectives of the revised NMAS are to:

1. promote quality, consistency and accountability of NMAS accredited mediators within the diversity of mediation practice in Australia;  and
2. inform participants in mediation about what they can expect of NMAS accredited mediators.

The new NMAS can be viewed on the MSB website http://www.msb.org.au.

Does the revised NMAS achieve the objectives the MSB set for it?  Are there any further amendments that could have improved the NMAS?

An expert panel will examine short and long-term strategies for responding more effectively to workplace grievances at a Melbourne event hosted by the Victorian Association for Dispute Resolution on 16 April 2015.  The expert panel consists of an investigator (Murray Bickerdike), a labour relations expert (Dr Anna Chapman) and a mediator-trainer (Zandy Fell). David Moore will facilitate the discussions.

See the attached flyer for details:  PANEL april 16th Responding more effectively to workplace grievance

The benefits of mediation to society, individuals and the justice system are numerous and these make mediation a process fast increasing in popularity and usage in many quarters. There has been an increase in the use of mediation in the courts, the community sector and even within government. In Australia, mediation quality is promoted through the National Mediator Accreditation System (NMAS) Approval and Practice Standards. Research, however, shows that ensuring quality in mediation goes beyond provisions of the NMAS partly because applying the standards to ethical and practical issues that may arise in a particular context may bring to the fore conflicts between the standards. An example of such a conflict is between the requirements of self-determination and a mediator’s ethical obligation to terminate or withdraw when it appears to the mediator that the proposed outcome is so unfair that it shocks the conscience. Maintaining a balance between the two creates a further dilemma for mediators. How does a mediator address the fairness of a proposed outcome in order to make a decision regarding termination or withdrawal? To address this dilemma, mediators go beyond the NMAS, reaching out to, and making decisions based on personal values, other professional values (and obligations which they may be bound by in any case) and sometimes ask the question: Can I live with this?

What values inform [your] decision-making when faced with ethical dilemmas in mediation?

See: Justice Quality and Accountability in Mediation – a report

There is now a groundswell call for increased adoption of ADR in legal education to develop non-adversarial practice in law students.

For example, in 2014 the Productivity Commission has recommended the inclusion of ADR in legal education (see chapter 7).

Whilst acknowledging that legal education must meet the needs of both students and a diverse array of stakeholders the productivity commission has also recognised the need for improved provision of ADR education in a law degree.The future of legal education arguably requires that ADR teachers are recognised and valued for the unique contribution that they provide to legal education.  ADR teachers provide a combination of theory and practice in dispute resolution that enriches legal pedagogy.

Many universities now include ADR as a mandatory course.  We all need to support the mandatory inclusion of ADR in legal education to ensure the development of non-adversarial practice in law