Ethical Issues In Mediation

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There are significant issues pertaining to the ethical obligations and guidelines of a lawyer engaged in mediation. Lawyers are regulated by ‘the law of lawyering’, a collection of conduct and court rules such as the Professional Conduct Rules 2010 (WA). None of these rules are specific to mediation and instead act as ‘blanket conduct’ for legal representation as a whole. While the primary objectives for litigation include the resolution of legal disputes and the pursuit of justice using socially accepted procedures and values, mediation involves the resolution of disputes using methods accepted by the parties themselves. As a result, ethical obligations for legal representatives remain dangerously unclear. There are few clear boundaries regarding …show more content…
The increase in popularity of informal justice and the essential nature of mediation within dispute resolution have given rise to arguments for the recognition of mediation as a separate profession rather than a mere area of legal practice. With this in mind, it is now imperative that the lawyer is well versed in the expectations of representing a client in dispute resolution. In this regard, the challenge of the lawyer is to be sensitive to the wishes of a client within mediation; often the goals are significantly different and are geared towards negotiation and settlement rather than zealous advocacy in judicial settings. Underlying core values such as self-determination, confidentiality and substantive fairness are key to a just and successful mediation. This is a strong contention that effective mediation cannot exist without a strong ethical framework, having no place in dispute resolution without the public’s faith and …show more content…
Active participation by the parties
2. Parties must be given sufficient information on both the process and the potential outcomes of the mediation
3. Decisions must be arrived at voluntarily by both parties; and
4. There must be no element of coercion by either the legal representatives nor the mediator in arriving at any decision
Tensions may lie with the legal representative when attempting to affect the role of problem solver, rather than objectifying the quest for justice. A lawyer for one party may find it difficult to stay impartial in the face of injustice in order to respect a party’s self-determination. When must a lawyer, armed with legal expertise far beyond that of a client, step forward to correct a substantively (and lawfully) ‘unfair’ decision? It has been stated that the current legal professional rules ‘were created with the underlying premise of an adversary system’, in which a lawyer must adopt the role of ‘zealous adversarial advocate’. It is this aggressive stance, where a positive outcome for a client outweighs any other object (sans duty to the court), which does not sit comfortably within dispute resolution. Such ‘zeal’ is said to be wildly inconsistent with the problem solving approach of mediation where all parties should be mollified, and have been widely approved , including various Australian ethical

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