Where Do Mediators (and Mediation) Fit in the Regulatory Scheme Governing Lawyers? Unexplored and Unintended Consequences of Treating Mediators as Courts

Mediation is now an integral component of the civil justice system. The question arises as to whether mediators should be treated as courts, or alternatively as third parties (it seems clear that they should not be treated as clients). In Australia, the professional conduct rules for lawyers provide a possible clue to the answer to this question as they define the term ‘court’ to include ‘mediations’. Unfortunately, it is not clear what is meant by this reference. In this paper, it is argued that rule drafters intended the reference to ‘mediations’ to mean ‘mediators’. If this is the case, then lawyers owe to mediators all the same obligations – including in some circumstances, an obligation of candor - as they owe to courts.

There is another side to this debate. If mediators are considered to be ‘courts’, it may also follow that mediators owe to others (the parties, non-parties affected by the mediation and the general community) obligations to be honest and to ensure fair outcomes. These issues are controversial and in some respects, represent an about-face on the traditional view that mediators are not responsible for outcome fairness. It appears that different answers have been adopted by lawyers’ professional bodies in various common law jurisdictions.

This paper will provide a comparative analysis of the rules of conduct governing lawyers in Australia, the UK, the USA and Canada as they apply to these issues. It will consider the implications of treating mediators as courts or as ‘other parties’. The author will make recommendations for change to the professional conduct rules in some jurisdictions including that of Australia.