About Associate Professor Bobette Wolski

Bobette Wolski is an experienced litigation lawyer and mediator. After a decade in private legal practice, Bobette began her teaching career at Bond University on the Gold Coast, Australia in 1994. She is currently an associate professor of law at Bond University where she teaches civil procedure, international dispute settlement, mediation, advocacy and a range of other dispute resolution courses. Bobette has also taught dispute resolution and legal skills at a number of other universities including the University of Queensland (Brisbane, Australia); the University of Applied Sciences, Jena (Germany); the Martin-Luther University of Halle-Wittenberg (Germany), North-West University, Potchefstroom (South Africa) and Thomas Gordon University, Aberdeen (Scotland). Bobette is an Associate Professor of Law at Bond University. She has published extensively in the areas of dispute resolution, legal skills and legal education. Her most recent publications are Legal Skills for Law Students (2006) and Skills, Ethics and Values for Legal Practice (2009)..

Call for Papers for a Special Edition Australian Journal of Clinical Education

The Australian Journal of Clinical Education (AJCE) is an open access double blind peer reviewed journal devoted to issues of practice and innovation in clinical education in the disciplines of Law and Health Professional Education.

SPECIAL ISSUE: TEACHING AND LEARNING OF DISPUTE RESOLUTION IN HIGHER EDUCATION

Guest editor: Dr Bobette Wolski

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Photo Credit: Russ Seidel, Colour and Shape, Creative Commons

INTRODUCTION

An understanding of dispute resolution theory and the development of dispute resolution skills are now considered to be a crucial part of a balanced education in a wide variety of disciplines and programs. It is generally accepted that learning about dispute resolution is best facilitated using simulations, roleplays and clinical experiences. It is through such learning experiences that our students gain, amongst other things, competency in communication skills, an understanding of human
emotions and needs, and an understanding of and appreciation for the variety of ways in which disputes may be resolved (or at least, managed). However, while much has been written about the teaching of dispute resolution, there are still many questions that remain unanswered, and challenges to be overcome.

CALL FOR PAPERS

The AJCE invites contributions for a special issue of the journal which will focus on the teaching and learning of dispute resolution in higher education. The issue will be edited by Dr Bobette Wolski (Guest Editor) and Dr Francina Cantatore (Editor-in-Chief).

The Editors invite submissions of articles for review and publication in Volume 4, 2018 from academics, researchers, practitioners and students on all matters relating to the learning and teaching of dispute resolution in higher education in law and health care in Australia and globally.
Submissions could address, but would not be limited to, topics such as:
1. Effective ways in which to integrate dispute resolution education in the curriculum or program of learning
2. The impact of emergent technologies on the learning and teaching of dispute resolution
3. Teaching and learning of dispute resolution to make a positive impact on student well-being
4. How to prepare students for the increasing importance of dispute resolution in the global environment
5. Innovations in teaching and learning of dispute resolution
6. Tried and true: teaching methodologies that have been effective in teaching dispute
resolution theory and practice
7. Teaching for interdisciplinary understanding and practice of dispute resolution
8. Dispute resolution and access to justice
9. Can we teach students to act ethically in dispute resolution and if so, how and why?
10. Any other topics relevant to the teaching and learning of dispute resolution.

Please submit an abstract of your paper (abstracts should be no longer than 300 words in length) by 31 May 2018. In the first instance, abstracts should be forwarded to Bobette Wolski by email addressed to: bwolski@bond.edu.au. Please include your position description, organisation and contact details in the abstracts. Authors will then be invited to submit full texts of papers to the journal website.

The submission deadline for full papers is 31 August 2018.

It is anticipated that the special issue, which will be published as Volume 4, 2018, will be published late this year or early next year.
The style guideline is available here.
For more information visit here.

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Regulating the Conduct of Legal Representatives in Mediation – Arguments for Maintaining the Status Quo

This post is part of our series of summaries of works in progress presented at the 6th ADRRN Roundtable held in Dunedin in December 2017.

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Image by Mohammed abushaban (Own work) [CC BY-SA 3.0 (https://creativecommons.org/licenses/by-sa/3.0)%5D, via Wikimedia Commons

Although lawyers are frequently called upon to represent their clients in mediation, lawyers’ professional associations have not issued additional or supplementary rules of conduct for mediation practice. Some law reform agencies[1] and commentators[2] have argued that mediation requires its own rules but discussion on the issue has stalled. In this short account of a paper delivered at the ADRRN Roundtable, I argue that the status quo – in which lawyers in mediation are governed by the current rules of conduct – should be maintained. The rules provide adequate guidance for lawyers, and adequate protection for persons impacted by mediation.

Position of legal representatives under existing rules of conduct

In the absence of specific rules for mediation, legal representatives are governed by the profession’s generic rules of conduct,[3] together with other components of the law of lawyering (including general law like the law of contract and torts; specific legislation such as the Legal Profession Legislation; and general legislation like Australian Consumer Law). In Australia, there is one set of professional conduct rules for solicitors (most state/territory rules are modelled on the Australian Solicitors Conduct Rules issued by the Law Council of Australia)[4] and another for barristers (again in most jurisdictions, they are based on model rules, the Australian Bar Rules issued by the Australian Bar Association).[5]

One accommodation for mediation has been made in the rules – the definition of ‘court’ has been extended to include ‘mediations’ (but this is not the same as making special provision for mediation and is itself a source of some confusion as to whether the drafters meant the mediation process or mediators).

The legal profession’s rules of conduct are general in their orientation. They set out general mandates for lawyers such as a duty to act with honesty, courtesy and fairness towards every person and entity with whom lawyers engage in the course of legal practice (these rules tend to encourage cooperation between practitioners); and a duty to act in the best interests of clients. The courts have held that general terms, such as that of ‘courtesy’, take their meaning from the context in which particular behaviour occurs.[6] The rules also include general prohibitions such as a duty to refrain from conduct which might lead the legal profession to be held in disrepute.

The rules also include a series of specific duties which can be categorised according to whether they are owed to courts, clients, and other parties including opponents. These include a duty never to mislead or deceive the court; a duty of confidentiality owed to clients; and a duty not to mislead opponents.

While there is a duty of honesty owed to everyone with whom the lawyer has dealings, where honesty refers to accuracy of information conveyed, there is no duty of candour ie there is no general duty to reveal information to courts, mediators, opponents and other third parties. There are exceptions where there is an obligation to speak up including the following:

  1. When dealing with a court, an advocate has a duty to inform the judge about relevant legal authorities and legislation.
  2. In ex parte applications (ie those where the other party is absent) an advocate must inform the judge of any relevant adverse matters of fact.
  3. If a practitioner has made a statement which, though true at the time it was made, has since become false, he or she must correct the statement (this was the rule offended by Messrs Mullins and Garratt).[7]
  4. A practitioner also has an obligation to correct a statement which is misleading because of the absence of some qualifying statement (this exception covers half-truths).

The rules establish a kind of hierarchy of obligations. The lawyer’s paramount obligation is to the court and the administration of justice (which is, in essence, a duty owed to society and not to an individual judge). The lawyer’s secondary obligations are owed to his or her clients. If there is a conflict between duties owed to the court (and the administration of justice) and those owed to a client, the duties owed to the court must prevail. The lawyer’s tertiary obligations are owed to third parties. If there is a conflict between a duty owed to a client and a duty owed to a third party, the duty to the client will usually prevail. Some authors point to this aspect of the regulatory system governing lawyers and argue that the rules give insufficient weight to the interests of other parties. However, the law of lawyering recognises that there may be circumstances where a breach of a duty owed to a third party – such as breach of an obligation not to mislead, is so serious as to amount to a breach of the duty owed to the administration of justice. In this way, the law recognises that lawyers in negotiation should refrain from assisting a client by ‘unconscionable’ means and from aiming to achieve ‘unconscionable’ ends.[8]

In my opinion, taken together these provisions are suitable for the regulation of lawyer conduct in mediation. Given the nature of mediation, it is the rules governing communications which are of most importance. In essence, the rules provide that: a lawyer is not generally required to reveal information, but if he or she chooses to speak,[9] the information conveyed must be accurate. This is a very effective measure for it is impossible for a party to put a case, or to respond to an opponent’s case, without making some statements.

Problematic aspects of proposals for new rules

There have been calls for the promulgation of rules of conduct requiring higher standards of disclosure, good faith participation, a duty of cooperation and an (unspecified) duty of fairness, and use of non-adversarial interest-based negotiation. There are problems with these proposals, including the following:

  • lack of consensus among proponents for change over the appropriate standard of disclosure required in mediation.
  • lack of consensus over, and uncertainty attached to, the meaning of concepts such as good faith and cooperation.
  • difficulty in articulating rules of this nature with any precision and in specifying what is and what is not acceptable behaviour.
  • difficulties of monitoring and enforcing compliance with rules of the kind proposed together with possible inroads which might be made into the confidentiality of the mediation process.
  • destruction of the informality and flexibility which are hallmarks of mediation.[10]

There are a range of problems with proposals for legal representatives to use interest-based negotiation and to be less adversarial in their conduct. They include the following:

  • parties need partisan legal representation in mediation to protect and enhance self-determination and its underlying requirement of informed consent. Parties need to know their legal rights and obligations.
  • every negotiation will involve some positional negotiation and every negotiation benefits from some element of competition.
  • every negotiator must choose, within the changing dynamics of negotiation, where they should be at any given moment in time on the ‘tightropes of negotiation’, treading a line between honesty as against misrepresentation; openness as against non-disclosure and cooperation as against competition.

These problems may not be insurmountable but more focused discussion involving all stakeholders is required. In the interim, the current rules of conduct provide adequate guidance for lawyers in mediation and adequate protection for the parties and other persons impacted by a mediation. The existing rules of conduct allow legal representatives to exercise discretion in relation to matters such as candour, cooperation and the approach to negotiation that they adopt at any given moment in time. This is perfectly consistent with the nature of mediation with one mediation likely to be different from the next. Despite the diversity of mediation practice, the legal representative’s basic position remains the same and this is reflected in the current rules of conduct. A lawyer remains an advocate for the client’s interests but he or she recognises that some disclosure is necessary for a productive mediation, and that cooperation with an ‘opponent’ and settlement is sometimes in the client’s best interests. Save for the fact that the drafters need to clarify the meaning of ‘mediation’ in the definition of court, the current professional conduct rules are ‘about right’.

[1] For instance, the Australian Law Reform Commission recommended the development of standards of conduct for legal representatives in ADR processes in its Managing Justice Report issued in 2000: see the Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System, Report No 89 (2000) [3.119]. Also see National Alternative Dispute Resolution Advisory Council, Maintaining and Enhancing the Integrity of ADR Processes: From Principles to Practice Through People, A Report to the Attorney-General (February 2011).

[2] In Australia, see Christine Parker and Adrian Evans, Inside Lawyers’ Ethics (Cambridge University Press, 2nd ed, 2014) 217-25. In the US, see Kimberlee K Kovach, ‘Lawyer Ethics Must Keep Pace with Practice: Plurality in Lawyering Roles Demands Diverse and Innovative Ethical Standards’ (2002-2003) 39 Idaho Law Review 399, 413-4; Carrie Menkel-Meadow, ‘Ethics in Alternative Dispute Resolution: New Issues, No Answers From the Adversary Conception of Lawyers’ Responsibility’ (1997) 38 South Texas Law Review 407, 410.

[3] See generally, Bobette Wolski, ‘An Evaluation of the Rules of Conduct Governing Legal Representatives in Mediation: Challenges for Rule Drafters and a Response to Jim Mason’ (2013) 16 Legal Ethics 182.

[4] Australian Solicitors Conduct Rules were adopted by the Law Council of Australia in June 2011 and last updated in 2015. The rules, as adopted, differ slightly in each jurisdiction.

[5] These rules also differ slightly in each jurisdiction. See, for example, in Victoria and NSW, the Legal Profession Uniform Conduct (Barristers) Rules 2015, commencing operation on 1 July 2015 and current at 2 September 2016.

[6] Lander v Council of the Law Society of the Australian Capital Territory [2009] ACTSC 117 (11th September 2009) [43] (Higgins CJ, Gray and Refshauge JJ).

[7] See Legal Services Commissioner v Mullins [2006] LPT 012 (23 November 2006); Legal Services Commissioner v Garrett [2009] LPT 12 (1 May 2009).

[8] Murray L Schwartz, ‘The Professionalism and Accountability of Lawyers’ (1978) 66 California Law Review 669, 671.

[9] Of course, the lawyer must comply with the duty of confidentiality owed to a client and will, in most circumstances, need to obtain the client’s consent to reveal the information.

[10] Reed Elizabeth Loder, ‘Tighter Rules of Professional Conduct: Saltwater for Thirst?’ (1987-1988) 1 Georgetown Journal of Legal Ethics 311, 319.

Honesty and Candour in Mediation: Are They in Short Supply?

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.

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Honesty the flower: credit Creative Commons  see below

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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

Agreements/Legislation

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’.[1] 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.

Negotiation Convention

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’.

 

[1] United Group Rail Services Limited v Rail Corporation New South Wales [2009] NSWCA 177 (3 July 2009) [76] (Allsop P).