Where lawyer ethics and the ethics of mediation practice collide

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Abstract

In Australia, legal disputes of virtually every kind are now subject to mediation. Mediation may come about by agreement between the parties, as a result of legislative directive, or by reason of court or tribunal initiative. Most courts in Australia now refer parties to mediation sometimes over the objection of the parties. In some areas of legal practice, such as that of family law, parties may not even be able to commence proceedings until they have made a genuine effort to resolve their dispute through mediation. As a consequence of these developments, many lawyers now find themselves involved in mediation, either as the mediator or as a legal representative for one of the parties to the mediation. These roles have the potential to raise a host of new ethical dilemmas for lawyers, dilemmas which are not explicitly contemplated in the regulatory system/s to which lawyers are currently subject. This paper identifies and explores a series of critical ethical issues that may be encountered by:
1. Lawyer mediators, who are subject to emerging standards of conduct for mediators, as well as relevant codes of conduct for lawyers and other components of the law of lawyering.
2. Legal representatives for the parties, whose ethical mandates may be at odds with the values and goals underlying the mediation process.
The paper also identifies tensions between the roles of (lawyer) mediators and those of legal representatives for the parties.
The paper offers some possible answers to some of the issues. Where there is doubt or uncertainty, the author suggests directions for future research and analysis.
Original languageEnglish
Publication statusPublished - 2018
EventThe 8th International Legal Ethics Conference : Legal Ethics in the Asian Century - Melbourne, Australia
Duration: 6 Dec 20188 Dec 2018
Conference number: 8th
https://law.unimelb.edu.au/ilec2018

Conference

ConferenceThe 8th International Legal Ethics Conference
Abbreviated titleILEC 2018
CountryAustralia
CityMelbourne
Period6/12/188/12/18
OtherThe eighth biennial ILEC takes place at a fascinating time in the evolution of legal ethics, as the disruptive innovation of legal services creates ongoing challenges and perhaps opportunities for ethics and professional regulation, both locally and trans-nationally. The continuing growth of Asia’s influence as an economic force, which has instigated the discourse of the ‘Asian Century’, arguably signals profound cultural, economic and legal transformations globally, and adds a further and so far under-developed, dimension to debates regarding the future(s) of legal ethics.

From modest beginnings in 2004, ILEC has become the premier international conference on legal ethics, and the flagship event of the International Association of Legal Ethics. The conference attracts a large international audience including scholars from a variety of disciplines, legal practitioners, judges and professional regulators from developed and emerging jurisdictions. The atmosphere of the conference is open and inclusive, with presentations organised into thematic panels across multiple streams.
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lawyer
mediation
moral philosophy
legal usage
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Wolski, B. (2018). Where lawyer ethics and the ethics of mediation practice collide. The 8th International Legal Ethics Conference , Melbourne, Australia.
Wolski, B. / Where lawyer ethics and the ethics of mediation practice collide. The 8th International Legal Ethics Conference , Melbourne, Australia.
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title = "Where lawyer ethics and the ethics of mediation practice collide",
abstract = "In Australia, legal disputes of virtually every kind are now subject to mediation. Mediation may come about by agreement between the parties, as a result of legislative directive, or by reason of court or tribunal initiative. Most courts in Australia now refer parties to mediation sometimes over the objection of the parties. In some areas of legal practice, such as that of family law, parties may not even be able to commence proceedings until they have made a genuine effort to resolve their dispute through mediation. As a consequence of these developments, many lawyers now find themselves involved in mediation, either as the mediator or as a legal representative for one of the parties to the mediation. These roles have the potential to raise a host of new ethical dilemmas for lawyers, dilemmas which are not explicitly contemplated in the regulatory system/s to which lawyers are currently subject. This paper identifies and explores a series of critical ethical issues that may be encountered by:1. Lawyer mediators, who are subject to emerging standards of conduct for mediators, as well as relevant codes of conduct for lawyers and other components of the law of lawyering.2. Legal representatives for the parties, whose ethical mandates may be at odds with the values and goals underlying the mediation process.The paper also identifies tensions between the roles of (lawyer) mediators and those of legal representatives for the parties.The paper offers some possible answers to some of the issues. Where there is doubt or uncertainty, the author suggests directions for future research and analysis.",
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Wolski, B 2018, 'Where lawyer ethics and the ethics of mediation practice collide' The 8th International Legal Ethics Conference , Melbourne, Australia, 6/12/18 - 8/12/18, .

Where lawyer ethics and the ethics of mediation practice collide. / Wolski, B.

2018. The 8th International Legal Ethics Conference , Melbourne, Australia.

Research output: Contribution to conferencePresentationResearch

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Wolski B. Where lawyer ethics and the ethics of mediation practice collide. 2018. The 8th International Legal Ethics Conference , Melbourne, Australia.