ADVOCACY IN MEDIATION: WHAT IS ITS ROLE? WHAT ARE ITS LIMITS? by Robert Angyal SC

Transcription

1 CONTINUING PROFESSIONAL DEVELOPMENT ADVOCACY IN MEDIATION: WHAT IS ITS ROLE? WHAT ARE ITS LIMITS? by Robert Angyal SC Wednesday, 17 March 2010 THE ROLE OF ADVOCACY IN MEDIATION 1 Difficulties in exploring advocacy in mediation: 1.1 Court hearings take place in public. Mediations take place in private. 1.2 The Court s process and functions are widely understood. How and why the mediation process works are less well understood. 1.3 The advocate s role in court is well understood. The advocate s role in mediation is less well understood. 2 On what occasions can the lawyer use advocacy at mediation? 2.1 In Court, the occasions for advocacy are well-defined: Opening the case and making oral or written addresses to the Court or the jury. 2.2 In mediation, there are at least six occasions when advocacy can be used: Before the mediation starts, in preparing the client for the mediation At joint meetings in the mediation, with all four audiences present In meetings with the mediator and the lawyer s client.

2 In meetings with the mediator and the opposing party s lawyer In meetings with the mediator alone In meetings with only the lawyer s client present. 2.3 Note that some of these occasions may occur repeatedly. 2.4 Some occasions may be short; others may stretch into hours. 3 Who is the advocate s audience at mediation? 3.1 In Court, the audience is the judge or jury. 3.2 In mediation, the advocate has at least four audiences: The opposing party The opposing party s lawyer The mediator The lawyer s own client. 4 The advocate at mediation himself or herself is an audience. Others present will attempt to persuade him or her of the merits of their (or their clients ) positions. 5 One of the challenges in mediation to the advocate is that, in several of these situations, it is necessary to address several audiences simultaneously. 5.1 Should a particular audience be targeted? 5.2 Should a technique be selected which is effective for all audiences addressed? 5.3 Should the audiences present be addressed sequentially? 5.4 The advocate in court does not have to confront any of these challenges. 6 The most important audiences, in descending order of importance, are: 6.1 The lawyer s own client. 6.2 The opposing client. 6.3 The opposing lawyer(s). 6.4 The mediator.

3 7 What techniques of advocacy are useful in mediation? 7.1 Not courtroom advocacy. 7.2 Appeals to emotion and feeling. 7.3 Importance of clarity of language. 7.4 Appeals to logic. 7.5 Silence. 8 Silence as an advocacy technique: 8.1 Listening and its benefits. 8.2 To express disbelief. 8.3 To express agreement. 8.4 To express disagreement. 8.5 To express lack of comprehension. 8.6 To indicate that more should be said To encourage the speaker to embellish and perhaps make damaging admissions. 8.8 When a response is called for, to encourage the speaker to lose their temper. THE ETHICAL LIMITS OF ADVOCACY IN MEDIATION 1 Rules 21 and 22 of The New South Wales Barristers Rules provide: 21 A barrister must not knowingly make a misleading statement to a court on any matter. 22 A barrister must take all necessary steps to correct any misleading statement unknowingly made by the barrister to a court as soon as possible after the barrister becomes aware that the statement was misleading.

4 4 2 Pursuant to Rule 15, court : means any body described as such and all other judicial tribunals and... all statutory tribunals and... all statutory of Parliamentary investigations and inquiries, Royal Commissions, the Independent Commission Against Corruption, arbitrations and mediations. 3 Rules provide: 51 A barrister must not knowingly make a false statement to the opponent in relation to the case * (including its compromise). * see Fair Trading Act, 1987 (NSW) sections 4 and A barrister must take all necessary steps to correct any false statement unknowingly made by the barrister to the opponent as soon as possible after the barrister becomes aware that the statement was false. 53 A barrister will not have made a false statement to the opponent simply by failing to correct an error on any matter stated to the barrister by the opponent." 4 Consider these questions in relation to Legal Services Commissioner v Mullins [2006] LPT 012 (Queensland Legal Practice Tribunal): 4.1 Under Queensland law, on the day of the mediation, Mr Mullins client was not obliged to disclose that he had cancer. Was his barrister, Mr Mullins? 4.2 Mr Mullins apparently got legal advice from Senior Counsel that, had the case gone to trial on the date of the mediation, he would not have had to disclose to the Court that his client had cancer. Why was Mr Mullins obliged to disclose this at the mediation? 4.3 The Tribunal s judgment talks a lot about obligations of disclosure but it seems to rely on rules forbidding false or misleading statements. It found that Mr Mullins had intentionally and fraudulently deceived the defendant s lawyers. What, exactly, did Mr Mullins do that amounted to a breach of the rules? 4.4 The Tribunal relied on Bar Rule 51 (which forbids a barrister knowingly making a false statement to his or her opponent about a case, including its compromise) and on Bar Rule 21 (which forbids a barrister knowingly making a misleading statement to a Court on any matter). Rule 21 seems to impose a higher standard than Rule 51. Why, then, did the Tribunal say at [34] that a barrister had a higher standard of candour at a mediation than in Court?

5 5 4.5 For the purposes of Bar Rule 21, Court includes a mediation (see the definition in Rule 15). If a barrister makes a statement to his or her opponent in a mediation, which rule applies, Rule 21 or Rule 51? 4.6 Section 42 of the Fair Trading Act prohibits a person from engaging in misleading or deceptive conduct. Unlike Bar Rules 21 and 51, s. 42 can be breached even though the person does not know that his or her conduct is misleading or deceptive. Could the Tribunal have relied on s. 42? 4.7 Section 42 of the Fair Trading Act prohibits a person from engaging in misleading conduct. Given this, why does Rule 51 only prohibit making false statements? And why does it refer to section 42? 4.8 Mr Mullins had been instructed by his client and his solicitor not to disclose at the mediation that the client had cancer, unless obliged by law to do so. Given his instructions, what should he have done? 4.9 Does the Mullins decision mean that, at a mediation, you have to disclose to your opponent your doubts about the validity of the assumptions made by any witness on whose evidence you intend to rely? 4.10 Your client is suing for damages as the result of sustaining injuries that, she deposes, have rendered her able to walk only with great difficulty. Just before a mediation of her claim, you notice that she has posted on her Facebook page a recent picture of herself climbing Anapurna. Do you have to disclose this to your opponent at the mediation? Robert Angyal SC 17 March 2010