Mediation, like negotiation, is at its most basic a process of communication between parties in dispute. The aim in mediation is to find a mutually agreeable solution. The success of mediation might well depend on the ‘honesty’ and ‘candour’ of the parties and their representatives. The parties must be honest and open enough to find a zone of agreement.
The terms honesty and candour need to be defined. Elsewhere I have defined ‘honesty’ as a concept which concerns the accuracy of information conveyed, while ‘candour’ is a concept which goes to the heart of whether or not information is conveyed at all.
While it makes sense for the parties to be honest and open enough to find a mutually acceptable solution, only a fool would rush into a mediation and reveal, at the outset, their BATNAs, WATNAs, and bottom lines.
As for mediators, they are constantly handling information gleaned from the parties in dispute. Often they have to run ‘messages’ back and forth from separate sessions with the parties.
This short discussion looks at the obligations, if any, which fall upon the mediation participants and mediators to be honest and candid.
Parties and their representatives – duties owed to mediators and to each other
Standard form agreements to mediate and relevant legislation do not usually impose an obligation to be honest and/or candid, although they often require parties to ‘cooperate’ with each other and with the mediator to carry out tasks such as isolation of issues in dispute, exploration of options and so on. Many legislative schemes require the parties to participate in good faith. The terms ‘cooperation’ and ‘good faith’ (and ‘genuine effort’) are rarely defined in agreements to mediate or by relevant legislation but the courts have discerned some common elements (eg attendance at the mediation by someone with authority to settle). Some guidance on behaviour which is not inconsistent with good faith in mediation is also available from cases and commentaries. Good faith does not require a party to act against self-interest and it does not require a party to take ‘any step to advance the interests of the other party’. Good faith does not require the parties to engage in total disclosure. There is no requirement to reveal all of one’s negotiation goals and bottom lines.
Lawyers, as agents for their clients, are also bound by the obligation to act in good faith. A lawyer cannot mislead the mediator or his or her opponent about a material fact for it is recognised that such action (or inaction, where a false statement needs to be corrected) constitutes bad faith.
It is sometimes assumed that interest-based negotiation, which underlies the facilitative model of mediation, requires honesty and candour. Negotiators adhering to an interest-based approach might explain their positions and interests (and refrain from misleading on these matters) with the idea of finding a solution that meets each parties’ interests, but the prescription to be honest and forthcoming with information stops at positions and interests. There is no requirement under this model of negotiation to disclose one’s BATNA or bottom lines.
Rules of Professional Conduct for Lawyers
If the parties are legally represented, the level of regulation intensifies. Legal representatives are subject to the ‘law of lawyering’ including the rules of conduct of the legal profession. These rules set out obligations owed by lawyers to courts and tribunals, clients, opponents and other parties.
Lawyers cannot mislead or deceive the court on any matter. They must advise the court of any adverse legal authorities and legislation. They must be honest and courteous to clients. They must not mislead or deceive their opponents. They must treat everyone with whom they interact, with honesty and courtesy.
Aside from the requirement to advise the court about adverse legal authorities and legislation, the rules do not impose a positive obligation to reveal information unless it is necessary to correct a half-truth or to correct a prior statement which has since become false.
The rules in relation to clients, opponents and others are easily transferable to mediation. The rules in relation to courts are an awkward fit in mediation. It seems that practitioners must treat mediators as courts (see the definition of ‘court’ in the professional conduct rules). If this is the case, practitioners must never mislead or deceive a mediator and they must reveal adverse legal authorities and legislation. I say that this is an awkward fit because mediators do not make substantive decisions and, unless he or she is an evaluative mediator, a mediator seems to have no need for information on adverse authorities and legislation. What is clear is that practitioners do not have to reveal other information either to the mediator or to an opponent save if it is necessary to correct a half truth or correct a statement which has become false (and of course, the practitioner must not reveal information without the consent of the client).
Mediators – duties owed to participants
The NMAS Standards
Assuming that a mediator is accredited under the NMAS and ‘bound’ by the scheme’s Practice Standards (PS), the mediator owes a duty of honesty in regard to matters of advertising and promotion of mediation. But that may be the extent of the mediator’s obligation for honesty under the PS. The mediator might owe an obligation to act with ‘integrity’ but the meaning of that term is not clear.
Rules of Professional Conduct for Lawyers
If the mediator is a lawyer, he or she is still subject to the law of lawyering.
Lawyer mediators owe obligations to the court (not to mislead or deceive). A lawyer mediator is still a lawyer and could not, for example, be a party to a fraud committed during mediation.
The rules governing the relationship of lawyers and opponents seems to have no application to mediators. Mediation participants are not the mediator’s opponents.
Mediation participants are not clients in the traditional sense.
It may be that participants are best considered to be ‘others’ (they are certainly not courts). If this assumption is correct, mediators are obliged to treat mediation participants with honesty and courtesy but there is, at least under the legal profession’s rules, no requirement for candour.
What is the safest course?
The best advice for parties (and their legal representatives) is to reveal information slowly and cautiously. If information is conveyed, care must be taken to ensure that it is accurate. Lawyer mediators must also take care to ensure that any information they convey is accurate. Since there is no general duty of candour, all those who participate in mediation – including mediators – must think before they talk. At times, they may want to take refuge in a silent ‘safe harbour’.
 United Group Rail Services Limited v Rail Corporation New South Wales  NSWCA 177 (3 July 2009)  (Allsop P).