The evaluation of the current rules of professional conduct governing legal representatives in mediation in Australian and the Unites States and a range of proposed alternative 'nonadversarial' ethics systems for lawyers

  • Bobette Wolski

Student thesis: Doctoral Thesis


Currently, lawyers who represent parties in mediation are governed by the legal profession’s general rules of professional conduct which make no specific provision for mediation. A number of influential authors maintain that these rules are inappropriate for, and incompatible with, mediation. They claim that mediation is based on objectives and values that are fundamentally different from those of litigation. They also claim that legal representatives undertake different roles in mediation than those that they undertake in litigation and that those new roles require new professional conduct rules. These authors have called for the promulgation of rules requiring higher standards of disclosure, good faith participation, fair dealing and use of non-adversarial interest-based negotiation. These proposals are considered in this exegesis.

This exegesis challenges the proposition that the legal profession needs new rules to govern the conduct of legal representatives in mediation. It examines and evaluates current rules of professional conduct governing lawyers in Australia and the United States as they apply to a range of ethical issues that confront legal representatives in mediation. Since the rules cannot be considered in isolation from other components of the law of lawyering, the research also examines obligations imposed on lawyers by general law, agreements to mediate (in the case of private mediations) and legislative directives to mediate (in the case of mandatory mediations).

Additionally, the research examines the features, objectives and values of litigation, mediation and unassisted negotiation and the roles undertaken by lawyers in these processes with a view to ascertaining if there are any factors which indicate the need for new rules of conduct or alternatively, the desirability of maintaining existing rule systems.

The research also critiques some of the proposals for new rules. It is argued that the rationale given for these proposals is flawed and that it is neither practical nor desirable to insist on full candour, good faith participation, non-adversarial behaviour and interest-based negotiation in mediation. It is argued instead that the current rules of professional conduct for lawyers are consistent with, and appropriate for, mediation. Together with certain external constraints which may operate on lawyers, the current rules and other components of the law of lawyering provide an adequate check on unethical behaviour in mediation. The current general rules are also more appropriate than specific rules for application in highly contextual processes such as mediation. They allow lawyers to exercise discretion in relation to matters such as candour, good faith and cooperation, while encouraging adherence to core professional values.

The exegesis concludes with an examination of some of the ethical complexities and problems that have arisen in the practice of collaborative law, a dispute resolution process in which participants explicitly agree to abide by obligations similar to those which proponents for new rules urge upon legal representatives in mediation. Collaborative law raises new ethical dilemmas without necessarily resolving the old ones and may offer some lessons in relation to ethical issues in mediation.

The exegesis integrates, and extends, the research undertaken in a number of my published works. It also makes original contributions to the fields of Alternative Dispute Resolution Ethics and legal professional regulation. There is presently a gap in our understanding of the factors which influence the ethics of legal representatives in mediation. This research will help close the gap. It may also be of assistance to law reform and regulatory agencies in Australia who are presently considering the issue of standards of conduct for participants in mediation and other dispute resolution processes.
Date of Award2011
Original languageEnglish
SupervisorJohn H Farrar (Supervisor)

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