This speech by The Hon Tom Bathurst AC, Chief Justice of New South Wales on 30 March 2017 addresses issues arising for advocates switching from the courtroom to the mediation table and is worth a read.
The Judge discusses what advocates should keep in mind when moving from litigation to mediation and back again.
I want to first discuss the ways in which advocates need to shift gears when moving from a litigation to a mediation terrain, employing different models of advocacy in each setting. I will then move to consider how a lawyer’s ethical duties may manifest themselves differently despite having the same essential content in both venues. Finally, I will discuss the extent to which practitioners are covered by advocate’s immunity from suit when representing clients in mediation…
Olivia Rundle has famously categorised five ways in which lawyers may participate in mediation. This ranges from;
- the absent advisor, who assists the client to prepare but does not attend the mediation
- the advisor observer, who attends the mediation but does not participate
- the expert contributor, who participates but only to the extent of providing the client with legal advice
- the supportive professional participant, who directly participates in concert with the client
- the spokesperson, who speaks for, and negotiates on behalf of, the client. It is only this final model that replicates the lawyer’s role in court.
… It is important that advocates give consideration to these roles before entering mediation so as not to either hijack the process or leave their client insufficiently supported.
No surprises that the sweet spot for a mediation advocate is to be high on the both the relationship and the expertise scale.