ADR ethics: Regulating disclosure in mediation

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. The focus of the literature to date concerns the ethical complexities faced by mediators. Comparatively little attention has been given to the ethical position of legal representatives. This paper identifies some common ethical issues which arise in mediation from the perspective of legal representatives for the parties. It focuses on the issue of disclosure of information (an issue which itself raises questions about honesty as against misrepresentation and openness or candour as against nondisclosure) and suggests how the issue might be resolved using the current rules of professional conduct governing lawyers in two common law jurisdictions, those of Australia and the United States. Each jurisdiction has taken a different approach on the issue. In the US, legal representatives owe mediators the same duties of disclosure as they owe to their opponents. In Australia, it seems that legal representatives may owe mediators the same duties as they owe to the judges. This paper will argue that the approach taken in the US (based on the much criticized rule 4.1 of the American Bar Association Model Rules) is to be preferred.