An evaluation of the rules of conduct governing legal representatives in mediation: Challenges for rule drafters and a response to Jim Mason

摘要

This article provides a comparative analysis of the rules of conduct governing legal representatives in Australia, the United States of America and the United Kingdom as they apply to a range of ethical issues in mediation. The analysis has four main aims. First, it clarifies the position in Australia and the USA - the Australian and American mediation communities have not introduced separate codes for ‘mediation advocates’ as Mason recently suggested. But some provisions have been made for mediation practice. The second aim is to tease out from these provisions learning points for policy makers and rule drafters. Amongst the points to consider is whether or not, and under what circumstances, mediators should be regarded as courts, or as third parties for the purpose of the rules. Third, the analysis provides some grounds for arguing that the current rules of conduct are appropriate for legal representatives in mediation. Fourth, it identifies challenges associated with proposals to introduce rules which require legal representatives to participate in mediation in good faith in a non-adversarial manner according to higher standards of honesty and candour. The article concludes by identifying a number of assumptions which permeate the literature on this topic.