ADR ethics: regulating disclosure in mediation
by Bobette Wolski
International Journal of Private Law (IJPL), Vol. 5, No. 2, 2012

Abstract: Many lawyers are now involved in mediation, either as a mediator or as a legal representative for one of the parties to the mediation. These roles raise a host of new ethical dilemmas for lawyers. The focus of the literature to date concerns the ethical complexities faced by mediators. Comparatively little attention has been given to the ethical position of legal representatives. This paper identifies some common ethical issues which arise in mediation from the perspective of legal representatives for the parties. It focuses on the issue of disclosure of information (an issue which itself raises questions about honesty as against misrepresentation and openness or candour as against non-disclosure) and suggests how the issue might be resolved using the current rules of professional conduct governing lawyers in two common law jurisdictions, those of Australia and the USA. Each jurisdiction has taken a different approach on the issue. In the USA, legal representatives owe mediators the same duties of disclosure as they owe to their opponents. In Australia, it seems that legal representatives may owe mediators the same duties as they owe to judges in a court of law. This paper will argue that the approach taken in the USA (based on the much-criticised rule 4.1 of the American Bar Association Model Rules) is to be preferred.

Online publication date: Sat, 20-Sep-2014

The full text of this article is only available to individual subscribers or to users at subscribing institutions.

 
Existing subscribers:
Go to Inderscience Online Journals to access the Full Text of this article.

Pay per view:
If you are not a subscriber and you just want to read the full contents of this article, buy online access here.

Complimentary Subscribers, Editors or Members of the Editorial Board of the International Journal of Private Law (IJPL):
Login with your Inderscience username and password:

Username:        Password:          Forgotten your password?

Want to subscribe?
A subscription gives you complete access to all articles in the current issue, as well as to all articles in the previous three years (where applicable). See our Orders page to subscribe.

If you still need assistance, please email subs@inderscience.com