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Legal Ethics Volume 16, 2013 - Issue 1
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Original Articles

An Evaluation of the Rules of Conduct Governing Legal Representatives in Mediation: Challenges for Rule Drafters and a Response to Jim Mason

Bobette Wolski Associate Professor of Law, Faculty of Law, Bond University, Queensland, Australia. All websites accessed May 2013.
Pages 182-215 | Published online: 07 May 2015

  • Phyllis E Bernard, ‘Dispute Resolution and the Unauthorized Practice of Law’ in Phyllis Bernard and Bryant Garth (eds), Dispute Resolution Ethics: A Comprehensive Guide(American Bar Association Section of Dispute Resolution, 2002) 89, 98. Much of the momentum towards the development of codes of conduct for mediators is attributable to a perceived need to professionalise the practice of mediation.
  • In Australia, guidelines for mediators have been promulgated by the peak national associations for lawyers (ie the Law Council of Australia and the Australian Bar Association) and by various state and territory law societies and bar associations. See eg Law Society of New South Wales, Revised Guidelines for Solicitors Who Act as Mediators(1 January 2008); Queensland Law Society, Standards of Conduct for Solicitor Mediators(23 September 1998).
  • See eg the Australian National Mediator Standards, Practice Standards For Mediators Operating under the National Mediator Accreditation System(September 2007); Institute of Arbitrators and Mediators Australia, Principles of Conduct for Mediators(2003). In the US, see American Arbitration Association, American Bar Association (Section of Dispute Resolution) and Association for Confict Resolution Joint Standards, Model Standards of Conduct for Mediators(2005). In the UK, see the European Code of Conduct for Mediators(2004); Centre for Effective Dispute Resolution (CEDR), Code of Conduct for Mediators(revised April 2008).
  • Jim Mason, ‘How Might the Adversarial Imperative be Effectively Tempered in Mediation?’ (2012) 15 Legal Ethics111.
  • Ibid, 116.
  • Carrie Menkel-Meadow provides a more comprehensive (though entirely aspirational) code in ‘The Ten Commandments of Appropriate Dispute Resolution: An Aspirational Code’ in Carrie Menkel-Meadow, ‘Ethics and Professionalism in Non-Adversarial Lawyering’ (1999–2000) 27 Florida State University Law Review153, 167–8.
  • Mason (n 4) 111.
  • Ibid, 117.
  • Generally, on this issue, see American Bar Association Section of Dispute Resolution, Resolution on Mediation and the Unauthorized Practice of Law(adopted by the Section on 2 February 2002); Carrie Menkel-Meadow, ‘Ethics in Alternative Dispute Resolution: New Issues, No Answers from the Adversary Conception of Lawyers' Responsibility’ (1997) 38 South Texas Law Review407, 422–4.
  • The rules in some jurisdictions make explicit provision to this effect. See eg Rule 15(d) of the Barristers' Conduct Rules promulgated by the Australian Bar Association, which provides that representation of a client in mediation falls within the scope of the work of a barrister. For solicitors, see Mark Richardson, ‘Defning Legal Work’ (June 2004) Law Society Journal63, 64.
  • The term ‘the law of lawyering’ is used here in a broad sense to cover all aspects of the law governing lawyers.
  • In the US, one needs to be cognisant of the American Law Institute's Restatement (Third) of the Law Governing Lawyers (1998), which ‘clarifes and synthesizes the common law applicable to the legal profession’: see the introduction to the Restatement. Although it appears as part of the Restatement Third series, there is no previous Restatement of this subject.
  • See eg Civil Procedure Rules 1998 (UK); Federal Court Rules 2011 (Cth); Federal Rules of Civil Procedure (as amended to 1 December 2010) (USA).
  • Regard must be had to legislation such as the Australian Consumer Law, which is set out in Sched 2 to the Competition and Consumer Act 2010 (Cth).
  • Currently there is no general national legislation in Australia governing the conduct of parties and their legal representatives in mediation. In the US, there has been some general legislative attempt to regulate behaviour in mediation with the promulgation of the Uniform Mediation Act (2001). However, the Act is primarily concerned with issues of confdentiality and enforcement of mediated settlement agreements (MSAs). It does not have the force of law until it is adopted in a given state. In the UK, lawyers involved in EU cross-border mediations of civil and commercial matters commenced on or after 6 April 2011 must have regard to Part 78 of the Civil Procedure Rules, which implements aspects of the EU Mediation Directive 2008/52/EC into the laws of England and Wales. However, as with the legislation in the US, regulation in the UK is primarily concerned with the issues of confdentiality and enforcement of MSAs.
  • In the UK, see the Legal Services Act 2007 (UK). In Australia, see eg the Legal Profession Act 2004 (NSW).
  • The Legal Profession legislation in the UK and in the states and territories of Australia permits the Councils of the Law Society and the Bar Councils and Associations to make rules with respect to the practices of solicitors and barristers. In fact, the rules in several jurisdictions have now been given a statutory foundation and other regulatory bodies are involved in the rule-making process. For a description of the process in Australia, see Gino Dal Pont, Lawyers' Professional Responsibility(Lawbook Co, 3rd edn 2006) 17–18; and for the UK, see Andrew Boon and Jennifer Levin, The Ethics and Conduct of Lawyers in England and Wales(Hart Publishing, 2nd edn 2008) 117–20.
  • It is widely agreed that these rules set only minimum standards or base levels of conduct rather than ceilings. See Dal Pont (n 17) 4; Boon and Levin (n 17) 7; Carol Rice Andrews, ‘Highway 101: Lessons in Legal Ethics that We Can Learn on the Road’ (2001–2) 15 Georgetown Journal of Legal Ethics95. There are a number of other sources (and degrees) of regulation of lawyers' behaviour in mediation which are not discussed in this article. For instance, in Australia, Commonwealth Government Agencies (and their legal counsel) and Family Dispute Resolution system lawyers are all subject to additional regulation; see Legal Services Directions 2005 (Cth) and Family Law Act 1975 (Cth), s 60I(1) and s 10F respectively. See generally National Alternative Dispute Resolution Advisory Council (NADRAC), Maintaining and Enhancing the Integrity of ADR Processes: From Principles to Practice through People, A Report to the Attorney-General(February 2011), Appendix 2.1, 117 for a list of Australian federal legislation prescribing conduct obligations in ADR. There is also additional regulation at the state level in Australia. See eg Victorian Law Reform Commission (VLRC), Civil Justice Review, Report No 14 (March 2008), chapter 3: ‘Improving the Standards of Conduct of Participants in Civil Litigation’ (‘Civil Justice Review Report’).
  • Mason (n 4) 111. The Law Council of Australia (LCA) approved new National Conduct Rules (the Australian Solicitors' Conduct Rules) in June 2011. To date, they have been adopted by law societies in Queensland and South Australia.
  • The Barristers Conduct Rules (hereinafter Australian Bar Rules) were approved by the Australian Bar Association on 1 February 2010 and updated on 8 October 2010. They replaced the Australian Bar Association Model Rules (8 December 2002) in a number of states and territories.
  • See Solicitors Regulatory Authority Code of Conduct 2011 (dated 17 June 2011, commencing 6 October 2011) (hereinafter SRA Code of Conduct). Although a different approach has been adopted in the SRA Code of Conduct, in that it sets out outcomes-focused conduct requirements, the general duties and priorities remain the same as those adopted in the SRA Solicitors' Code of Conduct 2007.
  • At the time of writing, the Code of Conduct of the Bar of England and Wales is in its 8th edition (adopted by the Bar Council on 18 September 2004) (hereinafter UK Bar Rules). An extensive review of the Code has been undertaken by the Bar Standards Board and a draft new Code has been circulated for consultation. See Bar Standards Board Consultation Paper on the Proposed New Code of Conduct for the Bar (January 2011), with draft new Code as annex 1, available at www.barstandardsboard.org.uk.
  • As is the case with the model rules in Australia, the American Bar Association Model Rules of Professional Conduct (2010) (hereinafter ABA Model Rules) are not in and of themselves binding, but the rules adopted in a particular state are enforceable against practitioners practising in that state.
  • The Australian Solicitors' Conduct Rules (hereinafter ASCR) and the Australian Bar Rules defne ‘court’ to mean any body described as such, a range of judicial and statutory tribunals, investigations and inquiries established by statute or a Parliament, Royal Commissions and ‘arbitrations and mediations' (with the ASCR using the phrase ‘an arbitration or mediation or any other form of dispute resolution’): see glossary of terms, ASCR and defnitions section, Australian Bar Rules. These defnitions have been carried over from the LCA Model Rules of Professional Conduct and Practice (16 March 2002) and the Australian Bar Association Model Rules (8 December 2002): Defnition Sections, LCA Model Rules and Introduction & Interpretation, Australian Bar Association Model Rules.
  • Mason (n 4) 117.
  • The LCA has also released a document entitled Guidelines for Parties in Mediations(August 2011).
  • Introduction Note, LCA, Guidelines for Lawyers in Mediation(March 2007). See also Law Society of New South Wales, Professional Standards for Legal Representatives in a Mediation(January 2008) (the standards were frst promulgated in 1993).
  • ABA, Ethical Guidelines for Settlement Negotiations, section 1, preface.
  • Ibid.
  • Ibid.
  • ASCR, r 3.1; Australian Bar Rules, Statement of Principles, cl 5. See also Re Foster(1950) 50 SR (NSW) 149, 151.
  • ASCR, r 4.1.5; SRA Code of Conduct, principle 1.
  • ASCR, r 4.1.1; SRA Code of Conduct, principles 3 and 6; UK Bar Rules, para 307(a).
  • ASCR, r 5; Australian Bar Rules, r 12; UK Bar Rules, para 301; ABA Model Rules, r 8.4.
  • Mason (n 4) 116.
  • SRA Code of Conduct, principle 2.6.
  • ASCR, r 4.
  • UK Bar Rules, preamble to Part III.
  • SRA Code of Conduct, part 1, note 2.1.
  • Some rules use the term ‘integrity’ instead of honesty: see eg SRA Code of Conduct, principle 2.
  • ASCR, r 4.1.2; SRA Code of Conduct, principle 2.
  • ASCR, r 4.1.2; SRA Code of Conduct, O(1.1).
  • ASCR, rr 4.1.3, 7.1; Australian Bar Rules, r 37(a); SRA Code of Conduct, O(1.5); UK Bar Rules, paras 303(a) and 701(a); ABA Model Rules, rr 1.1, 1.3.
  • ASCR, r 4.1.1 and rr 10–12; Australian Bar Rules, rr 112–14; SRA Code of Conduct, chapter 3; UK Bar Rules, paras 303(b) and 703; ABA Model Rules, rr 1.7–1.10.
  • ASCR, r 9.1; Australian Bar Rules, rr 108–11; SRA Code of Conduct, chapter 4; UK Bar Rules, para 702; ABA Model Rules, r 1.6.
  • For a discussion of the scope of the duty of confdentiality, see Dal Pont (n 17) 228–30; Boon and Levin (n 17) 223–6.
  • Douglas R Richmond, ‘Lawyers' Professional Responsibilities and Liabilities in Negotiations' (2009) 22 Georgetown Journal of Legal Ethics249, 261.
  • ASCR, r 9.2.4; ABA Model Rules, r 4.1(b).
  • ASCR, r 4.1.2; Australian Bar Rules, Statement of Principles, cl 5(c); SRA Code of Conduct, principle 2. See also ABA Model Rules, r 4.4.
  • This categorisation does not take account of the duties owed by lawyers to ‘collective third parties' (such as the profession as a whole, the state, and the wider public): see Boon and Levin (n 17) 285.
  • See defnitions at n 24.
  • Bobette Wolski, ‘The Truth about Honesty and Candour in Mediation: What the Tribunal Left Unsaid in Mullins’ Case’ [2012] Melbourne University Law Review706.
  • See ASCR, r 22 (communications with opponents), rr 30–33 (relations with other solicitors) and rr 34–35 (relations with other persons); Australian Bar Rules, rr 48–55 (duty to opponent).
  • Properly conceived, even the duty owed to the court is owed, not to any particular judge, but ‘to the larger community which has a vital public interest in the proper administration of justice’. David A Ipp, ‘Lawyers' Duties to the Court’ (1998) 114 Law Quarterly Review63, 63 (footnotes omitted).
  • Model Code of Professional Conduct of the Federation of Law Societies of Canada (13 December 2011), Defnitions Section 12. Compare with the Canadian Bar Association Code of Professional Conduct 2009, Interpretations Section, which does not include mediations or mediators in the defnition of court or tribunal.
  • ABA Model Rules, r 1.0 (see defnition of ‘Tribunal’).
  • SRA Code of Conduct, glossary (see defnition of ‘Court’).
  • SRA Solicitors' Code of Conduct 2007, r 24 (see defnition of ‘Court’).
  • UK Bar Rules, Part X (see defnition of ‘Court’). See also the defnition of ‘Court’ provided in the Legal Services Act 2007 (UK), s 207.
  • ASCR, r 4.1.2; Australian Bar Rules, Statement of Principles, cl 5; ABA Model Rules, preamble [2].
  • SRA Code of Conduct, O(1.1) and O(11.1).
  • ASCR, r 4.1.2; Australian Bar Rules, rr 2–4; UK Bar Rules, para 701(a); ABA Model Rules, preamble [2].
  • Wolski (n 52).
  • ASCR, r 19.1; Australian Bar Rules, r 26; SRA Code of Conduct, O(5.1); UK Bar Rules, para 302. See also ABA Model Rules, r 3.3(a)(1) which prohibits lawyers from making a false statement of fact or law to a tribunal.
  • ASCR, r 19.2; Australian Bar Rules, r 27; SRA Code of Conduct, IB(5.4); ABA Model Rules, r 3.3(a)(1). This duty continues even after trial: see Vernon v Bosley (No 2)[1997] 3 WLR 683.
  • ASCR, r 19.6; Australian Bar Rules, r 31; SRA Code of Conduct, IB(5.2); UK Bar Rules, para 708(c); ABA Model Rules, rr 3.3(a)(1), 3.3(a)(2).
  • Legal practitioners owe the court higher standards of candour when seeking any interlocutory relief in an ex parteapplication: ASCR, r 19.4; Australian Bar Rules, r 29; ABA Model Rules, r 3.3(d). For discussion of the standard of candour owed by them in these circumstances, see Satz v ACN 069 808 957 Pty Ltd[2010] NSWSC 365 (30 April), [55]–[68] (Barrett J).
  • There is also no obligation to assist one's opponent by putting before the court evidence which is favourable to the other side: see Khudados v Hayden[2008] CP Rep 12, [38].
  • ASCR, r 19.3.
  • In this instance, the public interest in maintaining legal professional privilege outweighs the public interest in discovering the truth: Dal Pont (n 17) 384, 386. On the importance of maintaining lawyer-client confdenti-ality, see Bolkiah v KPMG[1999] 2 AC 222, 236 (Lord Millett).
  • ASCR, r 22.1; Australian Bar Rules, r 48. The term ‘compromise’ is defned in the ASCR to include ‘any form of settlement of a case, whether pursuant to a formal offer under the rules or procedure of a court, or otherwise’: glossary of terms.
  • Legal Practitioners Complaints Committee v Fleming[2006] WASAT 352 (7 December 2006) (‘Fleming’).
  • SRA Code of Conduct, Chapter 11, Relations with Third Parties, and O(11.1). The position was the same under the SRA Solicitors' Code of Conduct 2007.
  • UK Bar Rules, para 708.1.
  • See eg Fleming[2006] WASAT 352, [87]; Williams v Commonwealth Bank of Australia[1999] NSWCA 345.
  • LCA, Guidelines for Lawyers in Mediations, cl 6.2.
  • ABA Model Rules, comment [2] to r 4.1.
  • Ibid.
  • Ibid.
  • ABA Standing Committee on Ethics and Professional Responsibility, Formal Opinion 06–439, ‘Lawyer's Obligation of Truthfulness when Representing a Client in Negotiation: Application to Caucused Mediation’, 12 April 2006, 3 (hereinafter ABA Formal Opinion 06–439). See also Don Peters, ‘When Lawyers Move their Lips: Attorney Truthfulness in Mediation and a Modest Proposal’ [2007] Journal of Dispute Resolution119, 128, who argues that the term ‘material’ would take its meaning from the law of contract and torts such that a representation will be material if it would induce reasonable persons to enter into an agreement.
  • G Richard Shell, Bargaining for Advantage: Negotiation Strategies for Reasonable People(Penguin, 2006) 205. See also Wolski (n 52).
  • SRA Solicitors' Code of Conduct 2007, r 10.01.
  • Principle 19.01, The Guide(The Law Society, London, 8th edn 2004). See also Boon and Levin (n 17) 379.
  • Boon and Levin (n 17) 380.
  • Ibid(footnotes omitted).
  • Ibid, 379.
  • Ibid.
  • Ibid.
  • See n 22.
  • ABA Model Rules, comment [1] to r 4.1.
  • Stephen Corones, Nigel Stobbs and Mark Thomas, Professional Responsibility and Legal Ethics in Queensland(Lawbook Co, 2008) 148–9; Geoffrey C Hazard, Jr, ‘The Lawyer's Obligation to be Trustworthy when Dealing with Opposing Parties' (1981–2) 33 South Carolina Law Review181, 189; Richmond (n 47) 276. See also Beach Petroleum NL v Johnson(1993) 11 ACSR 103, [22.60] (Von Doussa J).
  • Parties to litigation are required to disclose various documents and information to each other pursuant to civil procedure rules. Similar obligations may be imposed under specifc statutory schemes. See eg Motor Accident Insurance Act 1994 (Qld), ss 45, 51A, 51B.
  • See ASCR, r 22.3; Australian Bar Rules, r 50.
  • Fleming[2006] WASAT 352, [66] (Chaney J). In the UK, see Ernst & Young v Butte Mining Co[1996] 1 WLR 1605, where His Honour Robert Walker J held that solicitors must be ‘scrupulously fair and not take unfair advantage of obvious mistakes. The duty... is intensifed if the solicitor in question has been a major contributing cause of the mistake’ (at 1622). In the US, see eg In re Conduct of Eadie, 36 P 3d 468 (Or 2001) 476.
  • Wolski (n 52).
  • [2006] EWHC 3291 (QB), approved in Thompson v Arnold[2007] EWHC 1875 (QB).
  • In fact, the court considered the fax to be an offer to settle that could be withdrawn at any time, but this does not alter the analysis undertaken here: see Thames Trains Ltd v Adams[2006] EWHC 3291 (QB), [52] (‘Thames Trains’).
  • Thames Trains[2006] EWHC 3291, [56].
  • Boon and Levin (n 17) 381.
  • Thames Trains[2006] EWHC 3291, [56].
  • Ibid, [50]–[54].
  • See Richmond (n 47) 282 for a discussion of ‘four regular exceptions' to this general rule.
  • See eg ASCR, r 30.1 which covers so called scrivener errors. Such a situation arose in Chamberlain v Law Society of the Australian Capital Territory(1993) 43 FCR 148, where the practitioner deliberately took advantage of an obvious error (a misplaced decimal point) in a writ issued against him by the Deputy Commissioner of Taxation and ‘set in train the events and documents which... led to the entry of the [erroneous] consent judgment’: [49] (Lockhart J).
  • Dimmock v Hallett(1866) LR 2 Ch App 21. For a more recent example of this principle, see the facts in Krakowski v Eurolynx Properties Ltd(1995) 183 CLR 563. Generally, see Lam v Ausintel Investments Australia Pty Ltd(1989) 97 FLR 458, 475 (Gleeson CJ).
  • ASCR, r 22.2; Australian Bar Rules, r 49. In the US, see In re Carpentino's Case, 651 A 2d 1, 4 (NH 1994); Richmond (n 47) 281. In Australia, see Legal Services Commissioner v Mullins[2006] LPT 012, discussed in Wolski (n 52).
  • See Myers v Elman[1940] AC 282, 292; Lam v Ausintel Investments Australia Pty Ltd(1989) 97 FLR 458, 475. Additionally, an obligation to disclose information might arise by virtue of a special relationship between the parties.
  • Wolski (n 52).
  • ABA Formal Opinion 06–439 (n 80) 2 fn 2. See also ABA Model Rules, comment [5] to r 2.4. Other authors agree that mediation does not fall within the defnition of tribunal as it presently stands. See eg Robert P Burns, ‘Some Ethical Issues Surrounding Mediation’ (2001–2) 70 Fordham Law Review691, 705.
  • ABA Model Rules, comment [5] to r 2.4. A caucus refers to a separate meeting between the mediator and a party.
  • ABA Formal Opinion 06–439 (n 80) 2 fn 2. See also ABA Standing Committee on Ethics and Professional Responsibility, Formal Opinion 93–370, ‘Judicial Participation in Pretrial Settlement Negotiations', 5 February 1993.
  • Richmond (n 47) 289.
  • Ibid.
  • In Re Fee, 898 P 2d 975 (Ariz 1995).
  • Ibid, [7] (Zlaket J).
  • Ibid.
  • UK Bar Rules, r 708.1.
  • Some defnitions are available in the literature. For example, White notes that the concept of fairness ‘speaks to a variety of acts in addition to truthfulness and also different from it’: James J White, ‘Machiavelli and the Bar: Ethical Limitations on Lying in Negotiation’ [1980] American Bar Foundation Research Journal926, 928. It speaks, for example, to the threats a negotiator may use, the favours he or she may offer, and extraneous factors that may be used in negotiation (928). See also Hazard (n 91) 182.
  • See, for example, Family Law legislation, which seems in all jurisdictions to make the interests of the children paramount.
  • See eg Virzi v Grand Trunk Warehouse and Cold Storage Co, 571 F Supp 507, 512 (ED Mich 1983) discussed in Charles B Craver, ‘Negotiation Ethics: How to Be Deceptive Without Being Dishonest/How to Be Assertive Without Being Offensive’ (1997) 38 South Texas Law Review713, 721; Barry R Temkin, ‘Misrepresentation by Omission in Settlement Negotiations: Should there be a Silent Safe Harbor?’ (2004–5) 18 Georgetown Journal of Legal Ethics179, 202.
  • Craver (n 119) 722.
  • Virzi v Grand Trunk Warehouse and Cold Storage Co, 571 F Supp 507, 512 (ED Mich 1983).
  • Spaulding v Zimmerman, 116 NW 2d 704 (Minn 1962).
  • Legal Services Commissioner v Mullins[2006] LPT 012; Legal Services Commissioner v Garrett[2009] LPT 12.
  • LCA, Guidelines for Lawyers in Mediation(March 2007), s 2.2.
  • Ibid. Similar provision is made by the Law Society of New South Wales, Professional Standards for Legal Representatives in a Mediation(1 January 2008), s 5.4. See also LCA, Guidelines for Parties in Mediation(August 2011), s 10, which requires the parties to approach the mediation in good faith, but, again, does not provide a defnition of operative terms.
  • The terms ‘honour’ and ‘fair-dealing’ are not defned.
  • See eg Civil Procedure Act 2005 (NSW), s 27 (the parties are required to participate in good faith in mediation); Family Law Act 1975 (Cth), s 60I(1) and s 10F (the parties are required to ‘make a genuine effort to resolve’ a dispute before commencing court proceedings); Civil Dispute Resolution Act 2011 (No 17, 2011) (Cth), ss 6–7 (prospective litigants are required to lodge a ‘genuine steps statement’ with the court when commencing certain civil proceedings in the Federal Court of Australia or in the Federal Magistrates Court). The position appears to be similar in the US, with several authors noting that none of the statutes or court rules containing requirements of good faith in mediation provide a clear defnition of what it means. See eg John Lande, ‘Using Dispute System Design Methods to Promote Good-Faith Participation in Court-Connected Mediation Programs' (2002–3) 50 University of California Los Angeles Law Review69, 80.
  • For a review of relevant case law in the UK and the USA, see Nadja Alexander, ‘Good Faith as the Absence of Bad Faith: The Excluder Theory in Mediation’ (2009) 11 ADR Bulletin, Article 2, available at http://epublications.bond.edu.au/adr/vol11/iss4/2; James R Coben and Peter N Thompson, ‘Disputing Irony: A Systematic Look at Litigation about Mediation’ (2006) 11 Harvard Negotiation Law Review43, 105–15. One of the most well-known judicial interpretations of ‘good faith’ in Australia can be found in the case of Western Australia v Taylor (Njamal People)(1996) 134 FLR 211, 224–5 heard by the National Native Title Tribunal. Member Sumner set out a list of 18 indicia which defned good faith negotiation under the Native Title Act 1993 (Cth). These indicia are still relied upon: see Cosmos/Alexander/Western Australia/Mineralogy Pty Ltd[2009] NNTTA 35, [22]– [26]. Generally, see Maureen A Weston, ‘Checks on Participant Conduct in Compulsory ADR: Reconciling the Tension in the Need for Good-Faith Participation, Autonomy, and Confdentiality’ (2001) 76 Indiana Law Journal591, 628; David Spencer, ‘Drafting Good Faith Negotiation into Contracts' (2001) 4 ADR Bulletin29, 33.
  • Roger L Carter, ‘Oh, Ye of Little [Good] Faith: Questions, Concerns and Commentary on Efforts to Regulate Participant Conduct in Mediations' [2002] Journal of Dispute Resolution367, 384, 395; Weston (n 128) 626–7; Ulrich Boettger, ‘Effciency Versus Party Empowerment: Against a Good-Faith Requirement in Mandatory Mediation’ (2004) 23 Review of Litigation1, 17, 18.
  • ABA Settlement Guidelines, Committee Notes to Guideline 4.3.1, 49.
  • Mason (n 4) 177 (footnotes omitted).
  • For a discussion of relevant authorities in Australia and the USA, see David Spencer, ‘Requiring Good Faith Negotiation’ (1998) 1 ADR Bulletin37, 44; Carter (n 129) 367.
  • United Group Rail Services Limited v Rail Corporation New South Wales[2009] NSWCA 177, [70] (Allsop P, with whom Ipp JA and Macfarlan JA agreed).
  • Strzelecki Holdings Pty Ltd v Cable Sands Pty Ltd (No 3)[2009] WASC 352, [94]–[99].
  • Scott R Peppet, ‘ADR Ethics' (2004) 54 Journal of Legal Education72, 72.
  • See Ashmore v Corpn of Lloyd's[1992] 1 WLR 446, 453.
  • Civil Procedure Act 2010 (Vic), s 20.
  • Ibid, s 22.
  • See, for example, the requirements imposed by the Civil Procedure Rules 1998 (UK), Practice Direction— Pre-Action Conduct, Pre-Action Protocol for Personal Injury Claims. See also the pre-litigation requirements imposed under the Family Law Act 1975 (Cth), s 60I and Family Law Rules 2004 (Cth), r 1.05 and sch 1, pt 1 for fnancial cases and pt 2 for parenting cases.
  • Civil Dispute Resolution Act 2011 (No 17, 2011) (Cth), s 4.
  • For a case in which the court held that the lawyers involved had failed in their duty, see Superior IP International Pty Ltd v Ahearn Fox Patent and Trade Mark Attorneys[2012] FCA 282.
  • In formulating this list of ethical issues I have drawn upon literature pertaining to negotiation ethics. See eg Carrie Menkel-Meadow, ‘Introduction: What's Fair in Negotiations? What is Ethics in Negotiation?’ in Carrie Menkel-Meadow and Michael Wheeler (eds), What's Fair: Ethics for Negotiators(Jossey-Bass, 2004) xviii. See also Burns (n 108) 697.
  • I recognise that the question whether or not these circumstances constitute an improper purpose is itself a threshold question of ethical judgment.
  • On the primacy of the duty to the court, see Giannarelli v Wraith(1988) HCA 52, [12] (Mason CJ); Rondel v Worsley[1969] 1 AC 191, 227 (Lord Reid). See also eg Legal Services Act 2007 (UK), s 188(3); ASCR, r 3.1; Australian Bar Rules, Statement of Principles, cl 5; SRA Code of Conduct, O(1.2); UK Bar Rules, para 302.
  • See, for instance, UK Bar Rules, para 303(b). In Australia, see Law Society of NSW v Harvey[1976] 2 NSWLR 154, 170 (Street CJ).
  • See Legal Service Act 2007 (UK), s 188(2); Arthur Hall v Simons[2002] 1 AC 615, 726 (Lord Hope). In Australia, see Australian Bar Rules, r 41 (and for solicitor advocates, ASCR, r 17.1).
  • Fleming[2006] WASAT 352.
  • ABA Model Rules, preamble [1].
  • ABA Model Rules, r 1.2(a) and r 8.4(d); ABA Settlement Guidelines, guideline 3.1.3. Categorisation of instructions into means or objectives is not always easy. For instance, Burns argues that instructions to negotiate in a cooperative manner could be either a choice of means or a choice of the goals of the representation: Burns (n 108) 699.
  • As Condlin notes, lawyers owe clients only substantive competitiveness: Robert J Condlin, ‘Bargaining in the Dark: The Normative Incoherence of Lawyer Dispute Bargaining Role’ (1992) 51 Maryland Law Review1, 76–77.
  • The content of proposals for change to the professional conduct rules varies between authors. However, some common themes emerge. These include proposals for good faith participation, fair dealing, and honesty. See Paul Rosenberger, ‘Laissez-“Fair”: An Argument for the Status Quo Ethical Constraints on Lawyers as Negotiators' (1997–8) 13 Ohio State Journal on Dispute Resolution611, 618; Alvin B Rubin, ‘A Causerie on Lawyers' Ethics in Negotiation’ (1974–5) 35 Louisiana Law Review577, 589; Carrie Menkel-Meadow, ‘Is the Adversary System Really Dead? Dilemmas of Legal Ethics as Legal Institutions and Roles Evolve’ (2004) 57 Current Legal Problems84, 106; Christopher M Fairman, ‘Ethics and Collaborative Lawyering: Why Put Old Hats on New Heads?’ (2002–3) 18 Ohio State Journal on Dispute Resolution505, 528; Kimberlee K Kovach, ‘Lawyer Ethics Must Keep Pace with Practice: Plurality in Lawyering Roles Demands Diverse and Innovative Ethical Standards' (2002–3) 39 Idaho Law Review399, 413–14. The following literature is also relevant, although, for the most part, it focuses on a particular context (such as construction law mediations) or a particular aspect of ethics (eg candour): Peters (n 80); Robert C Bordone, ‘Fitting the Ethics to the Forum: A Proposal for Process-Enabling Ethical Codes' (2005–6) 21 Ohio State Journal on Dispute Resolution1, 3; Harold Abramson, ‘Problem-Solving Advocacy in Mediation: A Model of Client Representation’ (2005) 10 Harvard Negotiation Law Review103; James M Bowie, ‘Ethical Issues in Construction Mediation: Are There Any Rules?’ (2004) 24 Construction Law33; John W Cooley, ‘Defning the Ethical Limits of Acceptable Deception in Mediation’ (2003–4) 4 Pepperdine Dispute Resolution Law Journal263; James J Alfni, ‘Settlement Ethics and Lawyering in ADR Proceedings: A Proposal to Revise Rule 4.1’ (1999) 19 Northern Illinois University Law Review255; Menkel-Meadow (n 9) 407.
  • Mason (n 4) 118.
  • Alfni (n 151) 270; Bordone (n 151) 30 (who suggests a similar mandatory ethical guideline for negotiation).
  • Peters (n 80) 139. There has been much criticism of r 4.1 of the ABA Model Rules, and many authors have suggested that it be changed. For example, Bordone calls it a ‘euphemism for lying’: Bordone (n 151) 13. On the other hand, some commentators assert that the exception allowed in r 4.1 is ‘actually quite narrow. It merely permits “puffng” and “embellishment” but no overt or subversive misstatements of true material fact’: Charles B Craver, ‘Negotiation Ethics for Real World Interactions' (2010) 25 Ohio State Journal on Dispute Resolution299, 345.
  • Walter W Steele, Jr, ‘Deceptive Negotiating and High-Toned Morality’ (1986) 39 Vanderbilt Law Review1387, 1399; Temkin (n 119) 180, 182. See also Robert J Condlin, ‘Bargaining with a Hugger: The Weaknesses and Limitations of a Communitarian Conception of Legal Dispute Bargaining, or Why We Can't All Just Get Along’ (2007–8) 9 Cardozo Journal of Confict Resolution1, 73.
  • Eleanor Holmes Norton, ‘Bargaining and the Ethic of Process' (1989) 64 New York University Law Review493, 508; Steele (n 155) 1399. See also Rosenberger (n 151) 626.
  • This term is used by Fisher and Ury as an acronym for ‘Best Alternative to a Negotiated Agreement’: Roger Fisher and William Ury, Getting to Yes: Negotiating Agreement Without Giving In(Business Books, 2nd edn 1991) 101.
  • Cooley (n 151) 274–5.
  • ABA Formal Opinion 06–439 (n 80) 7; Richard Douglas and Kathryn McMillan, ‘Ethical Issues for Counsel Appearing in Mediations' (2012) 54 Hearsay, Journal of the Bar Association of Queensland, www.hearsay.org. au, 3.
  • ABA Formal Opinion 06–439 (n 80) 7.
  • Douglas and McMillan (n 159) 3.
  • Peters (n 80) 124.
  • Geoffrey M Peters, ‘The Use of Lies in Negotiation’ (1987) 48 Ohio State Law Journal1, 4.
  • Carrie Menkel-Meadow, ‘Ethics and Professionalism in Non-Adversarial Lawyering’ (1999–2000) 27 Florida State University Law Review153, 167–8.
  • Temkin (n 119) 181.
  • Generally, see Kimberlee K Kovach, ‘Good Faith in Mediation: Requested, Recommended, or Required? A New Ethic’ (1997) 38 South Texas Law Review575, 598; Weston (n 128) 630. See also NADRAC, Maintaining and Enhancing the Integrity of ADR Processes: From Principles to Practice through People, Report to the Attorney-General of the Commonwealth of Australia (February 2011), 34 [2.5.1].
  • Kovach (n 166) 617 and 622–3.
  • Kimberlee K Kovach, ‘New Wine Requires New Wineskins: Transforming Lawyer Ethics for Effective Representation in a Non-Adversarial Approach to Problem Solving: Mediation’ (2000–1) 28 Fordham Urban Law Journal935, 963. See also Weston (n 128) 630, who endorses this proposal.
  • Kovach (n 166) 616.
  • Kovach (n 168) 963.
  • Ibid.
  • Kovach (n 166) 622.
  • Boettger (n 129) 17; Lande (n 127) 77.
  • Kovach (n 166) 616.
  • Lande (n 127) 87; Edward F Sherman, “‘Good Faith” Participation in Mediation: Aspirational, Not Mandatory’ (1997–8) 4 Dispute Resolution Magazine14, 15; Kenneth L Bennight, Jr, ‘Enforceable Good Faith Requirements in Mediation Would be Worse Than the Status Quo’ (1997–8) 4 Dispute Resolution Magazine2, 2.
  • Boettger (n 129) 23; Lande (n 127) 95.
  • For negative views on good-faith requirements, see generally Lande (n 127) 73.
  • Lande (n 127) 98–99; Bennight (n 175) 2.
  • Weston (n 128) 638; Boettger (n 129) 28; Lande (n 127) 102–5; Sherman (n 175) 15.
  • Lande (n 127) 106; Boettger (n 129) 26; Bennight (n 175) 2.
  • Boettger thought that a good-faith requirement in mandatory mediation would further deplete the parties' self-determination: Boettger (n 129) 12.
  • Mark C Rutherford, ‘Lawyers and Divorce Mediation’ [1986] Mediation Quarterly17, 27–31; Bowie (n 151) 34. See also Christine Parker and Adrian Evans, Inside Lawyers' Ethics(Cambridge University Press, 2007) 135, who draw upon Law Society of New South Wales, Professional Standards for Legal Representatives in a Mediation(1 January 2008), s 2.3 (a provision which is not drafted in the language of a binding rule).
  • Jean R Sternlight, ‘Lawyers' Representation of Clients in Mediation: Using Economics and Psychology to Structure Advocacy in a Nonadversarial Setting’ (1998–9) 14 Ohio State Journal on Dispute Resolution269, 280; Lawrence Fox, ‘Mediation Values and Lawyer Ethics: For the Ethical Lawyer the Latter Trumps the Former’ in Bernard and Garth (n 1) 39, 39–41 (who argues that zealous advocacy and mediation are compatible concepts and that lawyers' duties are to their clients, not the mediation process). For other authors who argue that advocacy, and even zealous client representation, is indispensable in mediation, see eg John W Cooley, Mediation Advocacy(National Institute for Trial Advocacy, 2nd edn 2002) 127; Harold I Abramson, Mediation Representation: Advocating in a Problem-Solving Process(National Institute for Trial Advocacy, 2004) 7; Bordone (n 151) 11, 23.
  • Julie Macfarlane, ‘The Evolution of the New Lawyer: How Lawyers are Reshaping the Practice of Law’ [2008] Journal of Dispute Resolution61, 66.
  • James KL Lawrence, ‘Mediation Advocacy: Partnering with the Mediator’ (1999–2000) 15 Ohio State Journal on Dispute Resolution425, 426–7.
  • Bordone (n 151) 23.
  • Macfarlane (n 184) 66.
  • Ted Schneyer, ‘Some Sympathy for the Hired Gun’ (1991) 41 Journal of Legal Education11, 27; Lawrence (n 185) 443.
  • Mason (n 4) 115.
  • Fox (n 183) 41; Geoffrey C Hazard, Jr, ‘Lawyer for the Situation’ (2004–5) 39 Valparaiso University Law Review377, 379. Generally, see Fred C Zacharias, ‘Five Lessons for Practicing Law in the Interests of Justice’ (2002) 70 Fordham Law Review1939.
  • Fox (n 183) 41.
  • Sandra S Beckwith and Sherri G Slovin, ‘The Collaborative Lawyer as Advocate: A Response’ (2002–3) 18 Ohio State Journal on Dispute Resolution497, 498.
  • Mason (n 4) 114.
  • Negotiation theorists generally identify two approaches to negotiation, namely principled or interest-based vs positional (Fisher and Ury (n 157) 11); integrative vs distributive (Howard Raiffa, The Art and Science of Negotiation(Belknap Press of Harvard University Press, 1982) 33); cooperative vs competitive (Dean G Pruitt, Negotiation Behavior(Academic Press, 1981) 15); problem-solving vs share-bargaining (CL Karrass, The Negotiating Game(Thomas Y Crowell, 1970) 127); or, in popular terminology, win/win vs win/lose.
  • Gerald B Wetlaufer, ‘The Limits of Integrative Bargaining’ (1996–7) 85 Georgetown Law Journal369, 371.
  • Macfarlane (n 184) 70; Chris Guthrie, ‘The Lawyer's Philosophical Map and the Disputant's Perceptual Map: Impediments to Facilitative Mediation and Lawyering’ (2001) 6 Harvard Negotiation Law Review145, 180–2; Kay Elkins-Elliott and Frank W Elliott, ‘Settlement Advocacy’ (2004–5) 11 Texas Wesleyan Law Review7, 21; Norton (n 156) 530; Wetlaufer (n 195) 390; Raymond A Friedman and Debra L Shapiro, ‘Deception and Mutual Gains Bargaining: Are they Mutually Exclusive?’ (1995) 11 Negotiation Journal243, 250; James J White, ‘Essay Review: The Pros and Cons of “Getting to Yes”’ and Comment by Roger Fisher (1984) 34 Journal of Legal Education115, 116.
  • Donald G Gifford, ‘A Context-Based Theory of Strategy Selection in Legal Negotiation’ (1985) 46 Ohio State Law Journal40, 57.
  • Bowie (n 151) 34.
  • Laurence Boulle, Mediation: Principles, Process, Practice(LexisNexis Butterworths, 3rd edn 2011) 70–71.
  • Abramson (n 151) 118.
  • Norton (n 156) 530. See also Condlin (n 155) 73.
  • Norton (n 156) 530.
  • Ibid, 529.
  • Ibid, 530.
  • Ibid, 531.
  • Ibid.
  • Leonard L Riskin, ‘Mediation and Lawyers' (1982) 43 Ohio State Law Journal29, 37. See also Jacqueline M Nolan-Haley, ‘Lawyers, Clients, and Mediation’ (1997–8) 73 Notre Dame Law Review1369, 1385; James H Stark, ‘The Ethics of Mediation Evaluation: Some Troublesome Questions and Tentative Proposals, From an Evaluative Lawyer Mediator’ (1997) 38 South Texas Law Review769, 789.
  • Nolan-Haley (n 207) 1376–7.
  • Ibid.
  • Stark (n 207) 793.
  • Fox (n 183) 45.
  • For a discussion about how lawyers can help, see Jean R Sternlight, ‘Lawyerless Dispute Resolution: Rethinking a Paradigm’ (2010) 37 Fordham Urban Law Journal381, 405–9; Olivia Rundle, ‘A Spectrum of Contributions that Lawyers Can Make to Mediation’ (2009) 20 Australasian Dispute Resolution Journal220.
  • See Roselle L Wissler, ‘Representation in Mediation: What We Know from Empirical Research’ (2010) 37 Fordham Urban Law Journal419, 426 for discussion about the ‘handful’ of relevant studies. See also Art Hinshaw and Jess K Alberts, ‘Doing the Right Thing: An Empirical Study of Attorney Negotiation Ethics' (2011) 16 Harvard Negotiation Law Review95, who note that the topic of ‘attorney negotiation ethics' has ‘seldom been the subject of systematic empirical inquiry’: 110.
  • See eg Anne Ardagh and Guy Cumes, ‘Lawyers and Mediation: Beyond the Adversarial System?’ (1998) 9 Australian Dispute Resolution Journal72; Maureen Garwood, ‘Alternative Dispute Processes for Commercial Disputes—Quality and Style: A Survey’ (1999) 10 Australian Dispute Resolution Journal84; Chiara-Marisa Caputo, ‘Lawyers' Participation in Mediation’ (2007) 18 Australasian Dispute Resolution Journal84, 87.
  • One of the most often cited studies (one which fnds that lawyers tend to help rather than hinder the progress of mediation) is that conducted by Craig A McEwen, Nancy H Rogers and Richard J Maiman, ‘Bring In the Lawyers: Challenging the Dominant Approaches to Ensuring Fairness in Divorce Mediation’ (1994–5) 79 Minnesota Law Review1317. In Australia, one of the most often cited works is that undertaken by Micheline Dewdney, Bridget Sordo and Christine Chinkin, ‘Contemporary Developments in Mediation within the Legal System and Evaluation of the 1992–93 Settlement Week Program’ (Law Society of New South Wales, Sydney, 1994).
  • See eg Jill Howieson, ‘Procedural Justice in Civil Court Mediation: Exploring the Instrumental and Non-Instrumental Processes' (2002) 9 Murdoch University Electronic Journal of Law128 (the author surveys 86 participants in a pre-trial conference in the Local Court of Western Australia); Olivia Rundle, ‘Barking Dogs: Lawyer Attitudes Towards Direct Disputant Participation in Court-Connected Mediation of General Civil Cases' (2008) 8 Queensland University of Technology Law and Justice Journal77, 83 (a study based on a sample of 42 legal practitioners involved in court connected mediations, mostly of personal injuries matters, in the Supreme Court of Tasmania between April 2006 and May 2007). See also Tania Sourdin, Mediation in the Supreme and County Courts of Victoria, Report prepared for the Department of Justice, Victoria (April 2009), www.civiljustice.info/adreval, iii, v.
  • See eg Roselle L Wissler, ‘Court-Connected Mediation in General Civil Cases: What We Know from Empirical Research’ (2002) 17 Ohio State Journal on Dispute Resolution641; Rundle (n 216); Sourdin (n 216).
  • See eg Rosemary Hunter, ‘Adversarial Mythologies: Policy Assumptions and Research Evidence in Family Law’ (2003) 30 Journal of Law and Society156; Garwood (n 214).
  • Wissler (n 213) 468.
  • Linda Mulcahy, ‘Can Leopards Change their Spots? An Evaluation of the Role of Lawyers in Medical Negligence Mediation’ (2001) 8 International Journal of the Legal Profession203, 215.
  • Gary L Voegele, Linda K Wray and Ronald D Ousky, ‘Collaborative Law: A Useful Tool for the Family Law Practitioner to Promote Better Outcomes' (2006–7) 33 William Mitchell Law Review971, 1018.
  • Craver (n 154) 311.
  • ABA Formal Opinion 06–439 (n 80).
  • Reed Elizabeth Loder, ‘Tighter Rules of Professional Conduct: Saltwater for Thirst?’ (1987–8) 1 Georgetown Journal of Legal Ethics311, 319.
  • Mary Jo Eyster, ‘Clinical Teaching, Ethical Negotiation, and Moral Judgment’ (1996) 75 Nebraska Law Review752, 753.
  • Loder (n 224) 330.
  • See eg Ulrich Boettger, ‘Effciency Versus Party Empowerment: Against a Good-Faith Requirement in Mandatory Mediation’ (2004) 23 Review of Litigation1, 12 (who argues that a good-faith requirement in mandatory mediation would further deplete the parties' self-determination). See also Edward F Sherman, “'Good Faith” Participation in Mediation: Aspirational, Not Mandatory’ (1997–8) 4 Dispute Resolution Magazine14, 14; Kenneth L Bennight, Jr, ‘Enforceable Good Faith Requirements in Mediation Would be Worse than the Status Quo’ (1997–8) 4 Dispute Resolution Magazine2, 2.
  • Abramson (n 151) 124.
  • Research shows that use of a number of approaches by mediators is the norm ‘rather than the exception in the mediation of civil legal disputes': Dwight Golann, ‘Variations in Mediation: How—and Why—Legal Mediators Change Styles in the Course of a Case’ [2000] Journal of Dispute Resolution41, 42. See also Boulle (n 199) 43; Leonard L Riskin, ‘Decisionmaking in Mediation: The New Old Grid and the New New Grid System’ (2003–4) 79 Notre Dame Law Review1, 14–18; Jeffrey W Stempel, ‘The Inevitability of the Eclectic: Liberating ADR from Ideology’ [2000] Journal of Dispute Resolution247, 248.
  • See, for example, the work undertaken by Cheree Sefton, ‘No Square Pegs in Round Holes: What Mediators Want Lawyers to Do in Mediation and How they Get It’ (2011) 22 Australasian Dispute Resolution Journal22, 23–24.

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