Mediation Advocacy Ethical Considerations PDF

00:15 Ethical considerations arise from your role as a mediation advocate. Ethical considerations also arise because you are a lawyer representing a client. So all the duties of a lawyer also apply to you. Pay attention to the legal profession professional conduct rules, PCR for short. 00:45 also...

00:15 Ethical considerations arise from your role as a mediation advocate. Ethical considerations also arise because you are a lawyer representing a client. So all the duties of a lawyer also apply to you. Pay attention to the legal profession professional conduct rules, PCR for short. 00:45 also arise specifically to your conduct of the ADR process as a mediation advocate. So pay attention to the specific rule that talks about these ethical considerations as well. 01:05 The best way to understand ethical considerations is to look at the mediation process. 01:14 Mediation is a confidential process. Mediation is also a non-adversarial process. 01:25 The parties are encouraged to communicate directly with each other and arrive at an amicable resolution of the dispute. The process is driven by the mediator, who is an independent, impartial neutral. So, let\'s go back to talk about confidentiality. 01:55 means that whatever information is shared with you by your client should not be revealed to the mediator or to the other party without the express consent of your client. When in doubt, check. Ask your client, would you like me to reveal this information? At what point would you like me to reveal this information to achieve a certain effect? 02:25 in the course of the negotiations. Confidentiality also means you should not disclose the information that you have received in the course of a mediation to unauthorised persons. So for instance, you should not be talking to the media about the mediated case. You should not be giving details. You should be preserving confidentiality. You must not misuse this information. 02:55 in subsequent proceedings. So the information that you have gained in the mediation is to remain confidential. You should not be using it in subsequent litigation or arbitration. So consider the Mediation Act in this regard, the section on non-disclosure of information. 03:27 Mediation is non-adversarial. This doesn\'t mean that you\'re going to get all weak and soft. You are expected to protect your client\'s interests. You are expected to robustly advance your client\'s interests. The PCR provides that you must use all legal means to advance your client\'s case. However, 03:54 You are to do this in a collaborative manner. Communication should be constructive, problem-solving. It should facilitate parties to be able to talk constructively on issues and find solutions that they can live with that supports their underlying needs and interests. So consider. 04:23 that in a mediation, you need to be robust, but yet act in good faith. You need to be courteous. You need to be fair. You need to act honestly. In a mediation, parties are encouraged to communicate directly with one another. 04:44 It is facilitated this communication by a mediator, and the parties themselves reach an amicable resolution of the matter. This throws up a whole big area about the competence of a mediation advocate. 05:05 Let\'s take this at various levels. When the dispute arises and the client has chosen to go for mediation, the mediation advocate has to assess the strengths and weaknesses of the case and then guide the client to be aware of the nuances of the case. Because in a mediation, the client is going to have to 05:34 present the case, engage with the other party, talk to the mediator. And clients may be outside of their comfort zone because they have thought, I\'ve just hired a lawyer, my lawyer will talk for me. But the mediation is where parties are encouraged to deal direct with each other and come to a solution in a collaborative way. So\... 06:00 Having assessed the strengths and weaknesses of the case, you then help the client in preparing his presentation. How should he say it? What should he say? Is he going to get too emotional? You will then have to manage the client\'s emotion. You will help them develop their best alternative to a negotiated agreement, the BATNA. You will also help them understand their worst alternative. 06:29 to a negotiated agreement. Understanding this best case and worst case helps the client be in a better position to assess whether the proposals put forward during the mediation meet their underlying needs and interests. Then, when the client has been presented with the options and is about to make his decision, you should advise the client on the strengths 06:59 weaknesses, the pros and cons of those proposals, so that the client can make an informed decision about the conclusion that they are going to reach. You then need to work with the other parties\' council to draft and finalise the mediated settlement agreement, and then you need to assist the client to take all the follow-up action. Competence of the mediation advocate is paramount. 07:27 Another aspect of competence is working with the mediator during the mediation. You want the mediator to understand what is your client\'s case. You want the mediator to understand what your client\'s needs and interests. Why is the client having this aspect important to him? Why the client cannot have that kind of an outcome? 07:57 Having won the mediator over, you then assist the mediator to advocate for your client\'s case with the other party. In this way, you are facilitating the communication and the mediation in a constructive and collaborative way. Competence as a mediation advocate is paramount. 08:24 avoidance of conflict of interest. Now this is inherent in the way mediation as a mode of dispute resolution is carried out. 08:38 If you are going to settle your litigation or arbitration, it probably means that as an advocate, you earn less fees for this case. There is an inherent tension in there. Should I settle the matter, earn less fees, or should I encourage my client somehow to carry on with the litigation or arbitration? 09:08 So this is where the avoidance of conflict of interest is very important. You should always follow your client\'s mandate. When your client is reaching a decision to settle his matter, you can robustly reality test. And if the client still tells you that my needs and my interests are met with this settlement, 09:37 then you should allow the client to exercise their own decision. You should not resort to threats or undue influence to somehow 09:55 move your client one way or another. You must not allow your own personal interests, say, for more fees to get in the way of allowing your client the autonomy to make their own decision. So avoid conflict of interest.