It is fairly common for advocates to face ethical problems in mediation, including conundrums in intercultural or cross-border work caused either by unfamiliarity or stereotyping. The subject matter is broad, and of importance both to professional and non-professional party representatives. The latter may struggle to look for answers to ethical problems and may even fail to recognise the existence or nature of the problem. That difficulty stems from the danger of thinking that there are no rules in mediation, which is fairly common among new practitioners. When we stray away from the safety of the civil litigation framework and find ourselves in territory which is not necessarily familiar to us, it is quite common that something may occur either between you and your client, or between you and the mediator, or something is said in the presence of the mediator which causes in you a metaphorical alarm bell to start ringing (or ought to do so).
I would like to offer some examples of relatively common dilemmas of the professional advocate for you to consider, without necessarily stipulating a definitive answer. These are drawn from real cases and have been used as training exercises before where they are distributed for group discussion:
1. Your client has been present at a cross-border mediation in another country which has been running for nearly a day. You have formed the view that your client does not and is unable to comprehend the discussion, but is unlikely to admit it. You do not want to embarrass your client, for obvious reasons, but it is vital he understand the nuances of the detailed discussion. What do you do?
2. Your client admits to you that he does not have the authority to settle in the mediation that he has represented both to you and to the mediator. He had hoped to protect his personal position, but has realised during the course of the mediation he will need authority he does not possess. What are your options?
3. Your client wishes you to challenge the mediator’s impartiality because of his/her perceived emotional reactions to the other parties’ behaviour during the mediation (sympathy, antipathy); what do you do?
4. Your client has informed you that he believes the settlement he entered into to conclude the mediation was unfair and he felt pressured into doing so at the end of a long day. He wants to reopen the dispute and is threatening to breach confidentiality in order to do so.
5. Your client has discovered she was lied to by the mediator in caucus in respect of a fact that influenced her decision to enter a settlement she now wants to rescind. What do you advise?
6. Your client has prevented you by express instruction from disclosing information in a mediation in order to secure a settlement. How does
this affect you?
Consider these exercises, perhaps together with others, and formulate a contingency plan as to what to do should either they or anything like them crop up in your own practice.
None of them are really insuperable, and they tend to revolve around who you can speak to during the course of a mediation in which something like one of these situations occurs.
For some of the answers, and a fuller discussion, go to:
- the full article (12 pages) or
- place an advance order for Advanced Mediation Advocacy by Andrew Goodman, which will include a fuller and updated chapter.
Copyright Andrew Goodman 2023.