Ethical Considerations for a Mediation Advocate PDF

MEDIATION ADVOCACY mediation.com.sg mediation.com.sg 1  5 ETHICAL CONSIDERATIONS mediation.com.sg mediation.com.sg Ethical Considerations  Role of a Mediation Advoc...

MEDIATION ADVOCACY mediation.com.sg mediation.com.sg 1  5 ETHICAL CONSIDERATIONS mediation.com.sg mediation.com.sg Ethical Considerations  Role of a Mediation Advocate  Ethical Considerations for a Mediation Advocate  Duties of a lawyer to a client 3 Role of a Mediation Advocate  Prepare your client for mediation.  Support and assist your client in — presenting his/her account, perspectives & proposals; negotiating with & persuading the other party.  Assist the Mediator in — understanding the dispute; keeping the negotiation on track and constructive; managing your client’s emotions, conduct and expectations. 4 Role of a Mediation Advocate  Ensure that any decision made by your client is a well-considered & informed decision.  Ensure terms of settlement— are in your client’s best interests; reflect your client’s intentions; and assist in the preparation of the terms of settlement.  Assist your client in any follow-up action. 5 Role of a Mediation Advocate  In any mediation, a lawyer must protect and uphold his client’s interest no less robustly or zealously than in a litigation.  However, the approach to be taken should be — less (or non-) adversarial; focused on collaborative problem solving; constructive if facilitating a resolution of the dispute in a mutually acceptable manner; and consistent with the purpose and tone of mediation. 6 Role of a Mediation Advocate  Specifically for family proceedings: Legal Profession (Professional Conduct) Rules 2015 (“PCR 2015”), Rule 15A  Must inform client of all available dispute resolution options including mediation so as to enable client to make informed decision on how to resolve  From the time family proceedings are contemplated and whenever reasonably possible, advise client to consider resolving proceedings amicably.  Advise client to be constructive and reasonable when participating in these proceedings. 7 Ethical Considerations for a Mediation Advocate  PCR 2015 Rule 5 – Competence in advising the client Rule 6 – Protection of the client’s confidentiality Rule 7 – Courtesy and Fairness Rule 8 – Honesty, honourability and good faith in conducting the negotiation Rule 22 – Avoidance of conflict of interest 8 Ethical Considerations for a Mediation Advocate 1. Competence in advising your client  PCR 2015, Rule 5 (Honesty, competence, diligence).  Ensure your client is in a position to make objective, well-considered, informed decisions at the mediation. 9 Ethical Considerations for a Mediation Advocate 1. Competence in advising your client  Realistically and objectively assess for your client — the strengths and merits of his/her case & the other party’s case; the best (BATNA) and worst (WATNA) alternatives for your client to settling the case at mediation; the implications for your client in terms of costs, time, convenience, and other relevant considerations (e.g. goodwill, relationships, reputation) if the matter is not settled confidentially at mediation. 10 Ethical Considerations for a Mediation Advocate 2. Protection of confidentiality  Do not reveal (whether to the Mediator or the other party) any information that your client has instructed you not to reveal.  Seek your client’s permission if you are unsure whether a particular piece of information may be revealed during the mediation (including the preliminary conference between the lawyers and the mediator). 11 Ethical Considerations for a Mediation Advocate 2. Protection of confidentiality  Do not share any information about the mediation or its outcome with other persons without your client’s authorisation.  In relation to any information concerning the other party that has come to your and/or your client’s knowledge during the mediation — do not disclose this information to anyone without the authorisation of that other party; and impress on your client to maintain the confidentiality of that information. 12 Ethical Considerations for a Mediation Advocate 2. Protection of confidentiality  Mediation Act 2017 Section 9 (Restrictions on disclosure)  9(1) Subject to subsections (2) and (3), a person must not disclose any mediation communication relating to a mediation to any third party to the mediation. Section 10 (Admissibility of mediation communication in evidence) Section 11 (Leave of court or arbitral tribunal for disclosure or admission in evidence)  PCR 2015 - Rule 6 (Confidentiality). 13 Ethical Considerations for a Mediation Advocate 3. Avoidance of conflict of interest.  Respect your client’s decision The decision whether and on what terms to settle ultimately lies with your client. Respect your client’s decision even if it is not in accordance with your opinion or advice. 14 Ethical Considerations for a Mediation Advocate 3. Avoidance of conflict of interest.  Adherence to mandate given by client Ensure that when you reveal any information or make any proposal during the mediation, you have your client’s mandate / authorisation to do so. Do not enter into any agreement on behalf of your client when you do not have any mandate / authorisation to do so. 15 Ethical Considerations for a Mediation Advocate 3. Avoidance of conflict of interest.  Ensure your own interests are not in conflict with your client’s.  Ensure that you are not also acting for any other person whose interests are inconsistent with your client’s.  If you have acted as mediator in a mediation, you must not subsequently act for any party to the mediation in relation to the subject of the mediation or any matter discussed during the mediation.  Do not resort to threats or undue influence to sway your client. 16 Ethical Considerations for a Mediation Advocate 4. Honesty, honourability and good faith in conducting the negotiation  PCR 2015  Conduct of alternative dispute resolution process 8A.—(1) A legal practitioner must always be respectful of the alternative dispute resolution process and the adjudicator, mediator or other person conducting the process. (2) A legal practitioner must always be courteous in the conduct or presentation of his or her client’s case in an alternative dispute resolution process. (3) A legal practitioner must act in good faith throughout the alternative dispute resolution process. (4) A legal practitioner must not knowingly mislead or attempt to mislead in any way an adjudicator, a mediator or other person conducting the alternative dispute resolution process. (5) A legal practitioner must not knowingly assist or permit his or her client to mislead an adjudicator, a mediator or other person conducting the alternative dispute resolution process. 17 Ethical Considerations for a Mediation Advocate 4. Honesty, honourability and good faith in conducting the negotiation  While a mediation advocate may adopt any negotiation strategy that is in the best interest of his/her client — do not resort to underhanded negotiation tactics; do not mislead the other party or his/her lawyer with false information; endeavour to keep the negotiation constructive and collaborative with a view to resolving the dispute in a manner that is mutually acceptable by the parties. 18 Duties of a lawyer to a client  Render competent legal advice & representation to the client.  Act in the client’s best interests.  Use all legal means to advance the client’s interests, to the extent that the legal practitioner may reasonably be expected to do so (PCR 2015, Rule 5(2)(j)).  Secure the best outcome for the client in any negotiation or litigation.  Keep costs within the client’s budget. 19 Duties of a lawyer to a client  Avoid being in a position of conflict with the client’s interests.  Maintain and protect the confidentiality of the client’s confidential information.  Ensure that legal practitioner has relevant knowledge, skills and attributes required for each matter undertaken and apply the knowledge, skills and attributes in a manner appropriate to that matter (PCR 2015, Rule 5(2)(d)) 20  THANK YOU mediation.com.sg mediation.com.sg