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«CHAIRED BY Peter Booth Speakers Mark Hebblewhite  “Some Ethical Issues as they arise in Mediation” Karen Le Faucheur  “’Without ...»

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Commercial & Civil Law Practice Group

CHAIRED BY Peter Booth


Mark Hebblewhite

 “Some Ethical Issues as they arise in Mediation”

Karen Le Faucheur

 “’Without prejudice' - Can you claim the privilege?”

David Langmead

 “Employment bullying can cast shadows - but don't jump yet”

14th August, 2014 @ Monash University Law Chambers

Peter Booth

B Sc (Hons); LL.B; LLM.

 Chambers: Floor 28, Aickin Chambers

 Year Admitted: 11th April 1985

 Year Signed Bar Roll: 30th May 1991  Admitted to Practice in: Victoria, High Court.

 Phone: 03 9225 8527  Mobile: 0412 376603  Facsimile: 03 9670 7086  E-Mail: pbooth@vicbar.com.au  Areas of Practice o o Administrative Law Equity and Trusts o o Banking and Finance Insurance Law o o Bankruptcy/Insolvency Intellectual Property o o Building and Construction Law (Incl Leases : Commercial and Retail Tenancies o Engineering) Property Law/Sale of Land o o Trade Practices Commercial Law o Corporations (Company) Law Peter Booth practices in commercial law in all jurisdictions with an emphasis on matters involving contract, equity, company law and trusts. Peter also has experience in class actions in both the Federal Court and Supreme Court of Victoria. Peter appears predominantly in the Supreme Court of Victoria and Federal Court of Australia.

Professional Standards Act 2003 [Vic] "Liability limited by a scheme approved under Professional Standards Legislation."

Mark Hebblewhite “Some Ethical Issues as they arise in Mediation” Ethics (and some related issues) for Lawyers in Mediation Introduction & Overview In this paper I propose to  discuss the ethical duties that that are required of lawyers and then consider how these duties apply in the context of mediation,  consider how these duties may conflict with each other, andhow some of these situations have drawn comment from the courts in recent decisions,  briefly discuss the scope of confidentiality in mediation, And then, following on from this discussion, reflect upon some of the opportunities and advantages that mediation might offer our clients Ethics 101 As lawyers we are all bound by our ethical duties. Generally speaking, these duties have developed in the context of an adversarial process and our privileged role as officers of the court, giving efficacy to that process.

These duties are not always clear cut and often conflict.

Our role is to represent our client, and we have clear ethical duties to our client, but we have an overriding duty to the general administration of justice and to the court by whose authority we can continue to practice.

Duty to the court As officers of the Court we must act with honesty, integrity and candour.

The standard of honesty includes a prohibition from deceiving or knowingly or recklessly misleading the court. A practitioner should never provide the court with inaccurate information about any matter. There is also duty of candour to the court. If we are aware of a binding authority or legislative provision relevant to the issue being determined, we are bound to inform the court of that authority or provision, even if it is against our client’s interests.

Duty to the general administration of justice.

Further, as officers of the Court we have an obligation to the general administration of justice, based upon the need to promote fairness as well as efficiency in the legal system.

We must act with honesty, courtesy and fairness towards third parties, including our opponents.

Duty to clients We have clear duties to our clients to conduct ourselves with honesty, courtesy, competence and diligence, confidentiality and loyalty.

When there is a conflict between duties there may be no simple answer, but it is often the duty to act upon our client’s instructions that must yield to our duties to the court and to the general administration of justice.

Distinctions between adversarial processes and mediation In an adversarial process, the judge or decision maker brings the proceeding to an end by making findings based upon the admissible evidence and then applying the law to make a final determination. As a general principal, it is a transparent process, with the court doors open and judgements reported. It is important that justice is seen to be done. It is the judge who has the task of making the final decision, and then, subject to any appeal rights, the process comes to an end.

In contrast, mediation is characterised as a private process that emphasises confidentiality in order to allow for an open exchange of information for the purpose of the mediation. Client ‘self-determination’ is asserted as a key principle. Parties are directed to conduct themselves with ‘good faith’ towards the process. They are encouraged to reach an outcome that they agree to accept.

Role of mediator - coercion v negotiation The mediator’s task is to remain focussed on assisting the parties to reach their own agreement. There is no agreement unless the parties agree. If there is no agreement, the dispute remains unresolved.

The National Mediator Accreditation Practice Standards state: [at 2 Description of a Mediation Process. at 5. (pp3) ‘Mediators do not advise upon, evaluate or determine disputes. They assist in managing the process of dispute and conflict resolution whereby the participants agree upon the outcomes, when appropriate. Mediation is essentially a process that maximises the self -determination of the participants. The principle of self -determination requires that mediation processes be nondirective as to content.’ These National Mediator Accreditation Standards are in the process of review. The most recent

draft states at Part 111 – Practice Standards. 2.2:

“Mediators do not evaluate or advise on the merits or, or determine the outcome of, disputes.”

And at 8.2:

“Where mediators use a blended process such as advisory or evaluative mediation or

conciliation, which involves the provision of expert information and advice, mediators must:

(c) Ensure that the expert information or advice is provided in a manner that maintains and respects the principal of self-determination.” While it is acknowledged that not all mediators have elected to operate under the National Mediator Accreditation Scheme (NMAS), this description from the Practice Standards does highlight a key distinction between the role of the adjudicator and the mediator.

Role of legal representative - coercion v negotiation Guidelines for Lawyers in Mediations (2007) – Law Council of Australia “A lawyer’s role in mediation is to assist clients, provide practical and legal advice on the process and on issues raised and offers made, and to assist in drafting terms and conditions of settlement as agreed.

A lawyer’s role will vary greatly depending on the nature of the dispute and the mediation process. It may range from merely advising the client before the mediation, to representing the client during the mediation and undertaking all communications on behalf of the client.

–  –  –

Mediation is not an adversarial process to determine who is right and who is wrong.

Mediation should be approached as a problem-solving exercise. A lawyer’s role is to help clients to best present their case and assist clients and the mediator by giving practical and legal advice and support.

6.1 Skills The skills required for a successful mediation are different to those desirable in advocacy. It is not the other lawyer or mediator that needs to be convinced; it is the client on the other side of the table. A lawyer who adopts a persuasive rather than adversarial or aggressive approach, and acknowledges the concerns of the other side, is more likely to contribute to a better result.” How much pressure can we bring to bear upon our own client?

Is the agreement a product of the client’s own decision, or was the client’s will overborne.

Studer v Boettcher [2000] NSWCA 263 is a decision of the Supreme Court of New South Wales Court of Appeal.

Mr Studer had been the defendant in earlier proceedings that had settled at mediation. The mediation had gone for some 10 hours. He claimed that by the time he ‘capitulated’ and agreed to settle the case, he was behaving like a ‘zombie’ and had lost the ability to make rational decisions.

He later commenced proceedings against his solicitor, alleging that the solicitor had exerted undue and improper pressure.

He was unsuccessful at first instance and on appeal, the court stated;

“The degree to which the legal adviser may seek to persuade the client to compromise the claim and the way in which that may be done can, I believe, only be resolved having regard to the circumstances of the case in question. A great deal will turn upon the capacity of the client.” On the facts of that case, the court found that the solicitor acted with due care and skill and that the advice he provided to Mr Studer was sound. Even if the solicitor had brought ‘considerable pressure’ to bear, he did so in Mr Studer’s best interests.

Per Fitzgerald JA “The lawyer is also entitled to seek to persuade, but not to coerce, the client to accept and act on that opinion in the client’s interests. The advice given and any attempt at persuasion undertaken by the lawyer, must be devoid of self-interest.” And per Sheller JA: “ I agree with Fitzgerald JA that it is never the function of the legal adviser to coerce the client into settlement”.

The court drew a clear distinction between robust persuasion and coercion. Mr Studer’s solicitor was found to have acted in his best interests, presenting advice in robust terms in an attempt to persuade him to a certain course, but he then left it to the client to make the decision.

This can be contrasted to the matter of Fritsch [Goddard Elliott (a firm) v Fritsch [2012] VSC 87], a decision of Justice Bell of the Supreme Court of Victoria.

Mr. Fritsch had compromised his family law claim at the door of the Family Court. When his lawyers sued him for some fees, Mr Fritsch counterclaimed for damages alleging that his solicitor, senior counsel and junior counsel had been negligent. He claimed that he was not in a fit state mentally to give instructions and that his lawyers had coerced him into the compromise in circumstances where he was not competent on the day, and his lawyers should have been aware of that. At the time he had been diagnosed with major depression and post traumatic stress disorder, and his health had been deteriorating as the date of the trial drew closer.

Bell J found that in the circumstances of that negotiation, Mr. Fritsch had not been competent, and that his lawyers had been negligent.

As the court in Studer stated; ‘A great deal will turn upon the capacity of the client’. In the eyes of their respective courts, Mr Studer was seen to have the capacity to consider and respond to the advice he was given. Mr Fritsch was not, and his advisers were negligent because this should have been clear to them.

The decision of Fritsch was interesting for another reason. Although negligence was found, Mr Fritsch was not able to recover any damages for that negligence because his lawyers conduct was intimately connected to the conduct of the case in court, and so was covered by advocate’s immunity.

It goes without saying that this immunity would not apply in general negotiation or in the context of mediation.

Negotiation in good faith Participation ‘in good faith’ is central to ADR processes. It may be expressly stated in the legislation or in the contract or direction referring the dispute to mediation that parties are to participate in ‘good faith’. It is probably an implied term even if it is not expressly stated as a term in your mediator’s Mediation Agreement.

The Law Council of Australia ‘Guidelines for Lawyers in Mediations (2007)’ provide at 2.2 ‘Lawyers and clients should act, at all times, in good faith to attempt to achieve settlement of the dispute.’

They also state that:

‘(a) A lawyer should advise clients about what it means to act in good faith. A lawyer should not continue to represent clients who act in bad faith or give instructions which are inconsistent with good faith.

(b) Likewise, if a lawyer suspects the other parties to the mediation are acting in bad faith this should be raised privately at first with the mediator.’ What does ‘good faith’ mean, and how can we discern it.

 Isn’t it a term too vague and nebulous to be enforceable?

 If it is a legally enforceable requirement, what level of participation is required, and how is it to be assessed? By conduct? By subjective intention?

 How can one assess whether another’s participation is genuine?

In United Group Rail Services v Rail Corporation [2009] NSWCA 177 the Supreme Court of New South Wales Court of Appeal was asked to consider the requirement in the dispute

resolution section of a contract that senior representatives of each party must:

‘meet and undertake genuine and good faith negotiations with a view to resolving the dispute or difference’.

The appellant claimed that this clause was uncertain and therefore void and unenforceable.

The Court however was quick to give effect to the clear agreement made by the parties.

Per Allsop P :

[The parties] “have promised to undertake negotiations in a genuine and good faith manner… As a matter of language, the phrase “genuine and good faith” in this context needs little explication: it connotes an honest and genuine approach to the task.” “These are not empty obligations; nor do they represent empty rhetoric.” “It may well be that it will be difficult, in any given case, to conclude that a party has not undertaken an honest and genuine attempt to settle a dispute exhibiting a fidelity to the existing bargain. In other cases, however, such a conclusion might be blindingly obvious.

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