Ethics and - Gordon & Jackson

Issues which can arise in Mediation
Extremely aggressive advocacy and bargaining
Hiding strengths of other case and weaknesses of own case
Not alerting other side to existence of documents which would
assist them
Claiming “final offer” when it is not & other posturing
As in dealing with the courts, at a court appointed mediation you may not
keep secret an error that you know the other side may be relying on to their
detriment and to your client’s advantage.
Authority to settle – courts commonly make orders that persons with authority
to settle should attend the mediation. Ignoring such an order, or concealing
the fact that the responsible person either does not attend the mediation or
does not have the requisite authority offends the rules and probably amounts
to contempt of court.
For many clients attending a mediation is as emotional as appearing in court,
often they are not prepared for what is happening or likely to happen. Apart
from the opening statement and discussion, the rest of the mediation is
between the key parties and their willingness to concede points or position.
Whilst settlement is to be encouraged and clients made aware of costs
consequences in proceeding to the next step in litigation, neither should they
be harassed either by their own legal representatives or the other side’s.
A settlement at mediation has to be settling, not unsettling.
Conclusion
In conclusion I think our position as lawyers to deal ethically and
professionally can be summed up with the following cases:
In Clyne v NSW Bar Association (1960) 104 CLR 186 at 200, the court ruled
that “An advocate owes a duty to his client. He must advance and protect the
client’s interest to the best of his skill and diligence.”
Acting for clients is a privilege and carries with it responsibilities to always act
ethically in all areas of the work and in ensuring that we are competent to
perform the task we have been called upon to do.
Lydia Kinda
Douglas Menzies Chambers
25 September 2012
20