Lawyers in Mediation

Olivia Rundle’s article ‘Lawyers’ participation in mediation and professional ethical disposition’ (2015) 18(1) Legal Ethics 46 is a must read for mediation professionals, dispute resolution academics and legal practitioners. In it, Olivia reveals the variable and contextual role lawyers can play in mediation through an exploration of the relationship between a lawyer’s ethical orientation and their participation in mediation. She builds on and develops her previous work on models of lawyer participation in mediation (see particularly Olivia Rundle ‘A Spectrum of Contributions that Lawyers can make to Mediation’ (2009) 20 (4) Australasian Dispute Resolution Journal 220).

In her article, Olivia demonstrates the breadth of factors that may influence lawyers’ participation in mediation as well as the potentially complex and variable impact the particular matrix of factors that impacts on any individual lawyer may have. The article begins by mapping the structural, external and personal influences on lawyer participation in mediation. Lawyer behaviour in mediation is then explored using a combination of Parker and Evans’ four categories of lawyers’ ethical orientations to legal practice and three of Olivia’s models of lawyer participation that may occur in mediation. Issues associated with the purpose in mediation of, relationship with client of and challenges to adversarial advocates, responsible lawyers and moral activists are examined. In the conclusion, Olivia makes recommendations about how the analysis in the article should impact upon mediator practice and encourages self-reflection by lawyers about their role in mediation because of its importance to their achieving their aims.

This article brings a new, intellectually rigorous perspective to the discussion about lawyer behaviour and participation in mediation. The debate is certainly no longer simply whether lawyers’ participation in mediation is beneficial or detrimental. The real issues are far more nuanced and include how can and when will lawyers effectively participate in mediation.   As Olivia identifies, this raises significant issues for mediators and lawyers. Is there even a potential it raises new disciplinary and ethical issues for lawyers?