This post is part of our series of summaries of works in progress presented at the 6^th ADRRN Roundtable held in Dunedin in December 2017.

Image by Mohammed abushaban (Own work) [CC BY-SA 3.0 (https://creativecommons.org/licenses/by-sa/3.0)%5D, via Wikimedia Commons

Although lawyers are frequently called upon to represent their clients in mediation, lawyers’ professional associations have not issued additional or supplementary rules of conduct for mediation practice. Some law reform agencies[1] and commentators[2] have argued that mediation requires its own rules but discussion on the issue has stalled. In this short account of a paper delivered at the ADRRN Roundtable, I argue that the status quo – in which lawyers in mediation are governed by the current rules of conduct – should be maintained. The rules provide adequate guidance for lawyers, and adequate protection for persons impacted by mediation.

Position of legal representatives under existing rules of conduct

In the absence of specific rules for mediation, legal representatives are governed by the profession’s generic rules of conduct,[3] together with other components of the law of lawyering (including general law like the law of contract and torts; specific legislation such as the Legal Profession Legislation; and general legislation like Australian Consumer Law). In Australia, there is one set of professional conduct rules for solicitors (most state/territory rules are modelled on the Australian Solicitors Conduct Rules issued by the Law Council of Australia)[4] and another for barristers (again in most jurisdictions, they are based on model rules, the Australian Bar Rules issued by the Australian Bar Association).[5]

One accommodation for mediation has been made in the rules – the definition of ‘court’ has been extended to include ‘mediations’ (but this is not the same as making special provision for mediation and is itself a source of some confusion as to whether the drafters meant the mediation process or mediators).

The legal profession’s rules of conduct are general in their orientation. They set out general mandates for lawyers such as a duty to act with honesty, courtesy and fairness towards every person and entity with whom lawyers engage in the course of legal practice (these rules tend to encourage cooperation between practitioners); and a duty to act in the best interests of clients. The courts have held that general terms, such as that of ‘courtesy’, take their meaning from the context in which particular behaviour occurs.[6] The rules also include general prohibitions such as a duty to refrain from conduct which might lead the legal profession to be held in disrepute.

The rules also include a series of specific duties which can be categorised according to whether they are owed to courts, clients, and other parties including opponents. These include a duty never to mislead or deceive the court; a duty of confidentiality owed to clients; and a duty not to mislead opponents.

While there is a duty of honesty owed to everyone with whom the lawyer has dealings, where honesty refers to accuracy of information conveyed, there is no duty of candour ie there is no general duty to reveal information to courts, mediators, opponents and other third parties. There are exceptions where there is an obligation to speak up including the following:

1. When dealing with a court, an advocate has a duty to inform the judge about relevant legal authorities and legislation.
2. In ex parte applications (ie those where the other party is absent) an advocate must inform the judge of any relevant adverse matters of fact.
3. If a practitioner has made a statement which, though true at the time it was made, has since become false, he or she must correct the statement (this was the rule offended by Messrs Mullins and Garratt).[7]
4. A practitioner also has an obligation to correct a statement which is misleading because of the absence of some qualifying statement (this exception covers half-truths).

The rules establish a kind of hierarchy of obligations. The lawyer’s paramount obligation is to the court and the administration of justice (which is, in essence, a duty owed to society and not to an individual judge). The lawyer’s secondary obligations are owed to his or her clients. If there is a conflict between duties owed to the court (and the administration of justice) and those owed to a client, the duties owed to the court must prevail. The lawyer’s tertiary obligations are owed to third parties. If there is a conflict between a duty owed to a client and a duty owed to a third party, the duty to the client will usually prevail. Some authors point to this aspect of the regulatory system governing lawyers and argue that the rules give insufficient weight to the interests of other parties. However, the law of lawyering recognises that there may be circumstances where a breach of a duty owed to a third party – such as breach of an obligation not to mislead, is so serious as to amount to a breach of the duty owed to the administration of justice. In this way, the law recognises that lawyers in negotiation should refrain from assisting a client by ‘unconscionable’ means and from aiming to achieve ‘unconscionable’ ends.[8]

In my opinion, taken together these provisions are suitable for the regulation of lawyer conduct in mediation. Given the nature of mediation, it is the rules governing communications which are of most importance. In essence, the rules provide that: a lawyer is not generally required to reveal information, but if he or she chooses to speak,[9] the information conveyed must be accurate. This is a very effective measure for it is impossible for a party to put a case, or to respond to an opponent’s case, without making some statements.

Problematic aspects of proposals for new rules

There have been calls for the promulgation of rules of conduct requiring higher standards of disclosure, good faith participation, a duty of cooperation and an (unspecified) duty of fairness, and use of non-adversarial interest-based negotiation. There are problems with these proposals, including the following:

• lack of consensus among proponents for change over the appropriate standard of disclosure required in mediation.
• lack of consensus over, and uncertainty attached to, the meaning of concepts such as good faith and cooperation.
• difficulty in articulating rules of this nature with any precision and in specifying what is and what is not acceptable behaviour.
• difficulties of monitoring and enforcing compliance with rules of the kind proposed together with possible inroads which might be made into the confidentiality of the mediation process.
• destruction of the informality and flexibility which are hallmarks of mediation.[10]

There are a range of problems with proposals for legal representatives to use interest-based negotiation and to be less adversarial in their conduct. They include the following:

• parties need partisan legal representation in mediation to protect and enhance self-determination and its underlying requirement of informed consent. Parties need to know their legal rights and obligations.
• every negotiation will involve some positional negotiation and every negotiation benefits from some element of competition.
• every negotiator must choose, within the changing dynamics of negotiation, where they should be at any given moment in time on the ‘tightropes of negotiation’, treading a line between honesty as against misrepresentation; openness as against non-disclosure and cooperation as against competition.

These problems may not be insurmountable but more focused discussion involving all stakeholders is required. In the interim, the current rules of conduct provide adequate guidance for lawyers in mediation and adequate protection for the parties and other persons impacted by a mediation. The existing rules of conduct allow legal representatives to exercise discretion in relation to matters such as candour, cooperation and the approach to negotiation that they adopt at any given moment in time. This is perfectly consistent with the nature of mediation with one mediation likely to be different from the next. Despite the diversity of mediation practice, the legal representative’s basic position remains the same and this is reflected in the current rules of conduct. A lawyer remains an advocate for the client’s interests but he or she recognises that some disclosure is necessary for a productive mediation, and that cooperation with an ‘opponent’ and settlement is sometimes in the client’s best interests. Save for the fact that the drafters need to clarify the meaning of ‘mediation’ in the definition of court, the current professional conduct rules are ‘about right’.

[1] For instance, the Australian Law Reform Commission recommended the development of standards of conduct for legal representatives in ADR processes in its Managing Justice Report issued in 2000: see the Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System, Report No 89 (2000) [3.119]. Also see National Alternative Dispute Resolution Advisory Council, Maintaining and Enhancing the Integrity of ADR Processes: From Principles to Practice Through People, A Report to the Attorney-General (February 2011).

[2] In Australia, see Christine Parker and Adrian Evans, Inside Lawyers’ Ethics (Cambridge University Press, 2^nd ed, 2014) 217-25. In the US, see Kimberlee K Kovach, ‘Lawyer Ethics Must Keep Pace with Practice: Plurality in Lawyering Roles Demands Diverse and Innovative Ethical Standards’ (2002-2003) 39 Idaho Law Review 399, 413-4; Carrie Menkel-Meadow, ‘Ethics in Alternative Dispute Resolution: New Issues, No Answers From the Adversary Conception of Lawyers’ Responsibility’ (1997) 38 South Texas Law Review 407, 410.

[3] See generally, Bobette Wolski, ‘An Evaluation of the Rules of Conduct Governing Legal Representatives in Mediation: Challenges for Rule Drafters and a Response to Jim Mason’ (2013) 16 Legal Ethics 182.

[4] Australian Solicitors Conduct Rules were adopted by the Law Council of Australia in June 2011 and last updated in 2015. The rules, as adopted, differ slightly in each jurisdiction.

[5] These rules also differ slightly in each jurisdiction. See, for example, in Victoria and NSW, the Legal Profession Uniform Conduct (Barristers) Rules 2015, commencing operation on 1 July 2015 and current at 2 September 2016.

[6] Lander v Council of the Law Society of the Australian Capital Territory [2009] ACTSC 117 (11^th September 2009) [43] (Higgins CJ, Gray and Refshauge JJ).

[7] See Legal Services Commissioner v Mullins [2006] LPT 012 (23 November 2006); Legal Services Commissioner v Garrett [2009] LPT 12 (1 May 2009).

[8] Murray L Schwartz, ‘The Professionalism and Accountability of Lawyers’ (1978) 66 California Law Review 669, 671.

[9] Of course, the lawyer must comply with the duty of confidentiality owed to a client and will, in most circumstances, need to obtain the client’s consent to reveal the information.

[10] Reed Elizabeth Loder, ‘Tighter Rules of Professional Conduct: Saltwater for Thirst?’ (1987-1988) 1 Georgetown Journal of Legal Ethics 311, 319.