Barrister David Ash discusses ethical issues in mediation. Ethics in this informal setting are, he writes, as real and important as ethics in the formal and judge-driven courtroom. He discusses the four sources of ethics: the mediation contract; legislation; professional rules; and ourselves. David gave a seminar presentation on this topic for Legalwise Seminars.
Overview
Mediation and litigation are different forums.
- Mediation is a voluntary arrangement where the parties themselves seek to resolve their dispute.
- Litigation is when the parties submit their dispute to the state for the imposition of a resolution to their dispute by a formal court or tribunal.
Practitioners are familiar with the second forum. We tend to look to differences and inconsistencies between the two. This is no bad thing, but we must remember that the forums have things in common.
- Most obviously, the forums serve the same purpose, dispute resolution.
- Less obvious but also important, our ethical obligations are the same.
This note is concerned with mediations of civil proceedings. It informs but does not describe the ethics in the many mediations which occur outside civil and other litigation.
Source 1 of 4 – The mediation contract
The basis for a mediation will usually be a contract. The parties to the contract will usually be the mediator and each party.
- The contract may have an express term of good faith.
- Also, parties are generally bound to do all things necessary on their part to enable the other party to have the benefit of the contract.
A party’s professional adviser is not a party to a mediation. However, a contracting party’s own contractual duties inform their relationship with their professional advisers.
Source 2 of 4 – Legislation
From early this century, federal, state and territory legislation providing for civil disputes has usually referred to an “overarching” or “overriding” purpose, being the “just resolutions of disputes” or “the just, quick and cheap resolution of the real issues in the proceedings”. Whatever variant, there are two important issues for practitioners to be aware of in relation to mediation.
- First, the legislation imposes a duty on parties to proceedings to act consistently with the purpose and a collateral duty on practitioners not to cause their clients to be in breach of the clients’ duty.
- Secondly, mediation is defined to be part of the proceedings. This is an illogical but necessary compromise to fit the different forums, but the point is clear. In a mediation as much as in a courtroom or in a conference, the practitioner is an officer of the court.
Some legislation also imposes a stand-alone duty on a party to act in good faith for the course of a mediation. This duty may also derive from the mediation contract: see above. However, to the extent that the duty is part of the legislation, the practitioner will be fixed with the collateral duty discussed in the previous paragraph.
Source 3 of 4 – Professional rules
From 2015, a number of jurisdictions have adopted or adapted the Australian Solicitors Conduct Rules. Rule 7, set out below, has also been adopted or adapted by bars of different jurisdictions. Rule 7 provides:
7.1 A solicitor must provide clear and timely advice to assist a client to understand relevant legal issues and to make informed choices about action to be taken during the course of a matter, consistent with the terms of the engagement.
7.2 A solicitor must inform the client or the instructing solicitor about the alternatives to fully contested adjudication of the case which are reasonably available to the client, unless the solicitor believes on reasonable grounds that the client already has such an understanding of those alternatives as to permit the client to make decisions about the client’s best interests in relation to the matter.
The rule is self-evident. Its lesson is that a practitioner can only prepare for mediation in a professional manner. The reality that the whole purpose of mediation is usually to avoid the cost of fully contested litigation, informs but does not limit a professional approach.
Source 4 of 4 – Yourself
Each and all of a practitioner’s duties in a mediation are part of and not separate from their general duties to the court and to their client.
Each and all of these duties are premised on the practitioner being a social creature in a civilised society, willing to communicate and willing to give and able to receive respect.
We know from our professional experience that a good judge is rarely judgmental. So to a good advocate avoids being unnecessarily adversarial, whatever forum they are in.
Disclaimer: These general comments are no substitute for knowing their specific application in a jurisdiction.
David Ash is a mediator and barrister practising from Frederick Jordan Chambers in Sydney. Admitted as a barrister in NSW in 1998, David maintains a broad civil practice. David has regularly advised and appeared in state and federal Courts and statutory tribunals including courts of appeal and the High Court of Australia. David is an accredited mediator approved by the Supreme Court of New South Wales. David is a consulting editor for the Federal Court Reports and writes for the NSW Civil Procedure Handbook. He edits The Forbes Flyer (the quarterly newsletter of the Francis Forbes Society for Australian Legal History). David has worked as a research officer with the Judicial Commission of NSW and as a legal editor with the Law Book Company. He holds a Master of Laws and a Bachelor of Arts from the University of Sydney. Contact David at d.ash@fjc.net.au or connect via his chambers or LinkedIn 
