- Mediation is a core skill in legal practice.
- Legislation and case law impose strict obligations about misrepresentation both before and during mediations.
- The sanctions for transgressors are severe.
Any lawyer engaged in dispute resolution will be involved in many mediations during their career, so it is vital that the ethical responsibilities concerning communications with opponents and mediators be understood.
Ethical behaviour in mediation involves the fundamental proposition that a lawyer must never make a representation to an opponent or mediator that is known to be untrue. A lawyer must not permit an opponent to act upon a representation that the lawyer knows to be untrue.
In this article, references to various regulations are references to the Legal Profession Uniform Law Australian Solicitors Conduct Rules 2015 (‘The Rules’). The Rules provide as follows:
- ‘A solicitor must not knowingly make a false statement to the opponent in relation to the case (including its compromise).’ (r 22.1);
- ‘A solicitor must take all necessary steps to correct any false statement made by the solicitor to an opponent as soon as possible after the solicitor becomes aware that the statement was false.’ (r 22.2); and
- ‘A solicitor will not have made a false statement to the opponent simply by failing to correct an error on any matter stated to the solicitor by the opponent.’ (r 22.3)