Mediation is not an ethics-free zone. Both legal and professional conduct rules impose ethical duties on the professionals participating in a mediation - lawyers and mediators alike.
Ethical duties for lawyers in mediation
It might seem difficult to draw the line between unethical misrepresentations during negotiations, and permissible "puffing."
On the one hand, false statements about a party's tactics or strategies, such as a party's "bottom line" of settlement authority, or about a party's willingness to litigate or its plans to file bankruptcy, might be considered mere "puffing," as matters not intended to be relied upon.
But misrepresentations including false statements about, eg the existence of favorable witnesses, or about the amount of a party's earnings, or about policy limits, will be unethical conduct.
Ethical duties of mediators
The Law Council of Australia has published Ethical Guidelines for Mediators, which sets out and explains the various duties and responsibilities expected of mediators.
Ethical duties of the mediator include the duty to:
- facilitate (not dictate) the resolution of a dispute by promoting uncoerced agreement by the parties to the dispute, by facilitating communication, promoting understanding, assisting the parties to identify their needs and interests, and using creative problem solving techniques
- explore with the parties prior to the mediation commencing that each party will have the necessary authority to conclude any settlement
- partiality or prejudice; and
- conduct that gives any appearance of partiality or prejudice
- disclose all actual and potential conflicts of interest known to the mediator
- not mediate unless the mediator has the necessary competence to do so and to satisfy the reasonable expectations of the parties
- subject to the requirements of the law, maintain the confidentiality required by the parties
- terminate the mediation if the mediator considers that:
- any party is abusing the process; or
- there is no reasonable prospect of settlement
- encourage the parties to continue the mediation past the point of reaching settlement until the parties have:
- addressed any enforceability issues; and
- recorded terms of settlement in writing
- not engage in misleading or deceptive publicity or advertising.
- not make any false or misleading statement including statements or claims as to the mediation process, its costs and benefits, or the mediator's role, skills, or competence
- fully disclose his or her fees to the parties
When ethical duties clash
Unethical conduct by lawyers can create potential dilemmas for mediators, particularly if they are asked to participate in impermissible sorts of misrepresentation.
An ethical mediator should take as their touchstone that they should not commit or perpetrate fraud. They should take some action if they become aware that one party is making impermissible misrepresentations. They may refuse to convey misrepresentations to the other side, or even withdraw in some cases.
© 2015 Phillip Street Chambers Pty Ltd