Mediation an 'invisible profession'

by Nicole Sosnowski, KT Journalism

Mediation is an "invisible profession" that can cause ethical challenges, says Bond University Professor Laurence Boulle.

Professor Boulle and Queensland barrister Peter Munro used a fictional scenario to discuss ethics in mediation at the AILA-Queensland Law Society insurance law intensive on the Gold Coast.

Professor Boulle said mediation was not yet a highly regulated profession, so there were various approaches, including no direct hard-ball regulation; the market's "invisible hand"; state regulation; and self-regulation, with an opt-in approach.

After four years of consultation, the mediation industry developed a National Mediation Accreditation System (NMAS). It is an industry-based scheme that relies on voluntary compliance by mediator organisations to agree to accredit mediators in accordance with a set of standards. An independent industry body, the Mediator Standards Board, developed and maintains the NMAS.

Professor Boulle said about 1,900 mediators were NMAS accredited. The system covered the "inevitable" values of accountability in other ethical codes, including conflicts of interest, impartiality, confidentiality, procedural fairness, inter-professional relations, and professional fees.

He said "definitional issues" existed in mediation ethics because the concept of mediation was "flexible", so it was sometimes hard to define whether a mediator was actually mediating. The absence of case law also made it difficult to determine standards. "There are very few cases that lift to the surface the court's view of standards and issues," Professor Boulle said.

Mr Munro and Professor Boulle asked delegates whether it was okay for mediators to take extra fees from parties who offered them if they were successful. Mr Munro said mediators could not do so without impeaching on their impartiality. "It looks wrong; it smells wrong; it's not an impartial approach." He said a mediator's position was compromised, even if extra fees were disclosed.

The pair asked whether mediators should disclose the frequency of their association with a particular party before mediation began. Mr Munro said it was unnecessary to disclose prior contact, unless confidential information was carried over to the current case. Professor Boulle agreed, but said it was "expedient" to disclose information immediately, rather than potentially disclose it later in mediation. Mr Munro said it was never harmful for mediators to disclose.

The pair discussed whether parties must disclose their insolvency. Mr Munro said a party could not participate in mediation if they knew they could not respond to agreed terms, like making payments. Professor Boulle said parties had a duty to participate in mediation in good faith, and non-disclosure of insolvency may be a "misrepresentation of silence".   

They discussed confidentiality during mediation and both agreed parties could not use admissions in mediations as evidence. However, parties could try to prove disclosed information through other sources.

Professor Boulle said mediators could deliver messages differently to parties, depending whether they were represented and unrepresented. For example, represented parties knew a ‘final offer’ was often not final, but inexperienced parties may think differently. "I would package the message differently to an unrepresented party."

Mr Munro said a 2003 Victorian Supreme Court case, Tapoohi v Lewenberg, found mediators owed a duty of care to all parties. Since then, mediators had been reluctant to draft terms of settlement, preferring to leave it to the parties. Professor Boulle said it was Australia’s first case in which a mediator was sued.

(Tapoohi v Lewenberg & Ors (No 2) [2003], VSC 410, 21/10/ 2003)