Bobette Wolski‘s recent article in the UNSWLJ makes a valuable contribution to understanding lawyer behaviour in mediation. The article examines lawyers’ obligations in mediation, with reference to the “law of lawyering” – (binding) rules of professional conduct. The way that these are applied (or likely to be evaluated) are also affected by (non-binding) guidelines for lawyers’ behaviour in mediation. Lawyers owe a primary duty to the court/administration of justice, but they are not neutral or impartial between the parties to a dispute. They are partisan service providers to their clients, often in the role of representative or advocate and always in the role of advice giver.The ethical duties to the client are trumped only by the duty to the court. Bobette Wolski looks at how lawyers’ duty to do their work for their client translates into the mediation context.
The focus of the article is on minimum standards that lawyers must meet, as opposed to recommendations for “best practice” or “most effective” strategies in mediation (although in one section the tasks that a lawyer should perform in mediation are unpacked, drawing on a variety of literature). The analysis of professional standards provides an essential background to the development of recommendations about optimal mediation strategy. The analysis also necessarily relies upon the “law of lawyering” set in time. It may be that further common law and/or statutory developments will clarify some of the grey areas that Wolski has grappled with. These include:
- When a duty is owed to “mediation” (where “court” is defined to include “mediation”), to who or what is that duty owed?
- How should the duties of fairness and courtesy be applied in the mediation context?
- Given strong judicial and statutory support for concepts such as “good faith” and “cooperation”, how might lawyers’ obligations to participate in these ways in mediation be interpreted?
A particularly important aspect of Bobette Wolski’s article is her critical examination of commentary about concepts such as “adversarial advocacy”, “zeal”, “advocates”, and “non-adversarial” within mediation (we have explored similar definitions in a previous post). She notes the ongoing challenges of lack of clarity of terms and fragile distinctions, as well as the cavern between idealisation of mediation in literature and training on the one hand, and mediation practice on the other. Meanings matter, and a significant challenge in guiding lawyers’ behaviour in mediation is clarifying the meaning of terms used. Bobette Wolski recommends reconsideration and clarification of terms such as “advocacy”, “adversarial conduct” and “non-adversarial manner” in guidelines for lawyer behaviour in mediation, because of tension between some interpretations of these concepts and the law of lawyering. Her critique of commonly used phrases provides food for thought for the language that we choose, and how we clarify our meaning, in practice, teaching and research.
The article ends with a challenging (and dare I say exciting!) list of suggestions for further research. Perhaps there are some opportunities to collaborate on one or more of these “gaps” in knowledge about lawyers in mediation.