Preventing Inadvertent Misbehavior in Mediation: A Guide to Common Ethics and Professionalism Issues - Scheinman Scholars - Dispute Resolution Journal - Vol. 70, No. 2

Author(s): 

Margaret M. Toohey

Page Count: 

12 pages

Media Description: 

1 PDF Download

Published: 

July, 2015

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Originally from Dispute Resolution Journal

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I. INTRODUCTION

 

This article attempts to serve as a practical guide for lawyers

advocating for their clients in a mediation setting. I identify five

categories of critical ethics and professionalism issues in mediation,

and detail the best practices the lawyer should adopt in order to ensure

compliance with the Model Rules of Professional Conduct (hereinafter

“Rules”) and any associated ethical responsibilities. The categories that

I discuss include: The Client-Lawyer Relationship; Proper Preparation;

Puffing vs. Misconduct; The Role of the Lawyer in the Eleventh Hour;

and Competent Conclusion of the Mediation. Although the lawyer must

be aware of ethical and professionalism issues in any mediation, this

article best addresses lawyers representing clients in commercial

mediations where both parties are represented by counsel and where

there is typically a large sum of money involved.

 

 

A. The Client-Lawyer Relationship

 

An ethical lawyer will remember that, literally and figuratively, the

client comes before the lawyer in the client-lawyer relationship.1 Per

Rule 1.2, a lawyer must abide by his client’s decision as to whether to

settle a matter.2 Clients, not lawyers, settle cases. Yet under Rule

1.1, the lawyer has a duty to provide competent representation to his

client.3 A lawyer cannot competently represent his client until he

possesses the legal knowledge, skill, thoroughness and preparation

reasonably necessary for the representation.4 So, what is the lawyer’s

role in mediation?

 

 

As a preliminary note, the lawyer is (in many but not all states)

under an ethical obligation or at least expectation to suggest

mediation to his client. Rule 2.1 Comment [5] states that “when a

matter is likely to involve litigation, it may be necessary under rule

1.4 to inform the client of forms of dispute resolution that might

constitute reasonable alternatives to litigation.”5 Although no cases

(yet) have held that that the failure to advise clients about mediation

and other ADR methods constituted malpractice, such a finding

would be perfectly reasonable.6 This is true for three reasons. First,

legal malpractice often hinges on informed consent, and “litigation

may be viewed as the legal equivalent of surgery: not always the most

desirable means to resolution, and one for which the client should

make the ultimate choice. The client, after all, bears most of the

risk.”7 Failure to inform the client of the risks of litigation and suggest

the alternative (mediation) should constitute legal malpractice in the

same way that failing to inform the patient of the risks of surgery and

suggest alternative procedures would constitute medical malpractice.

Second, offering mediation, which is almost always more cost-effective

and fee-reducing than litigation, “may come to be seen as part of an

attorney’s fiduciary duty.”8 And third, as mediation becomes

increasingly common if not routine, recommending or at least

considering its use in appropriate cases “may come to be part of the
basic standard of care which the competent practice of law requires.”