Ethics for Georgia Lawyers Representing Clients in Mediations
| Publication year | 2009 |
| Pages | 0020 |
A Look at the Law
Ethics for Georgia Lawyers Representing Clients in Mediations
by John A. Sherrill and Chelsea L. Wilson
Many of us remember the early beginnings of mediation in Georgia from the old "settlement days" in the 1970s when, at the request of trial court judges, local litigators would volunteer to meet with lawyers in pending cases to see whether resolution could be reached short of trial. Over the years, mediation has become a much more commonly used practice, as well as an increasingly sophisticated process, with its own set of standards, rules and procedures.
In fact, today, a progressively larger percentage of the activity of civil dispute resolution occurs through mediation, and it is now the preferred method of alternative dispute resolution (ADR) for business disputes.[1] In addition to offering potential cost savings, mediation is consensual, with the mediator acting as a neutral facilitator, and thus offers the possibility of maintaining long-term business relationships between disputants.
As the popularity of mediation has increased, rules and standards have been adopted to address the ethical standards to which mediators must adhere. There is far less formal guidance, however, regarding the ethical standards that the attorneys representing the mediation
participants should follow. Some commentators assert that the role of the lawyer in mediation should go beyond advocating for the client by requiring the attorney to help ensure that the process itself is a fair one that seeks to attain the goal of a settlement satisfactory to all participants.[2] Yet, should the goals of representation within mediation be any different from those in the more traditional adversarial setting of litigation or arbitration? This article addresses emerging ethical standards for mediators, ethics for mediation advocates, allocation of authority between lawyers and their clients in mediation, the obligation for truthfulness in mediation, mediation confidentiality and good-faith requirements in mediation.
Emerging Standards—Ethics for Mediators
As mediation has become more widely used, much has been written and many sets of rules and standards have been adopted to address the ethical responsibilities of mediators. In 1993, the Supreme Court of Georgia created the Georgia Commission on Dispute Resolution (the Commission). The Commission promulgated the Georgia Alternative Dispute Resolution Rules (Georgia ADR Rules), Appendix C of which contains Ethical Standards for Mediators.[3] These standards include a requirement for mediator neutrality, an obligation to ensure that each party has the capacity to participate in the mediation and admonitions against coercion of parties to obtain a settlement.[4] The Commission also has issued Model Court Mediation Rules,[5] which overlap with some principles found in the Georgia ADR Rules. State and superior courts may, but are not required to, adopt these Model Court Mediation Rules, and thus local rules of a referring court should be consulted.[6]
At the national level, in September 2005, the American Bar Association (ABA), the Association for Conflict Resolution and the American Arbitration Association (AAA) jointly adopted Model Standards of Conduct for Mediators (the Model Standards).[7] Although only advisory, the Model Standards addressed many of the ethical issues facing mediators, including self-determination, impartiality, conflicts of interest and competence of the mediator, confidentiality, quality of the process and advancement of mediation practice.
Muddy Waters—Ethics for Mediation Advocates
At the threshold level, should attorneys be mandated by ethical standards or rules to behave differently in mediations than when representing clients in other dispute resolution settings such as arbitration or litigation? Alternatively, do clients have the right to expect their attorneys to zealously represent them within mediation by acting to maximize their interests? Would such a supposition mean that meditation is merely another adversarial proceeding that must be handled in the same manner as litigation? To address these issues, it is helpful to consult the Georgia Rules of Professional Conduct (GRPC),[8]which are based generally on the ABA Model Rules of Professional Conduct (ABA Model Rules),[9] and which have been adopted by the Supreme Court of Georgia.[10] In addition, advisory comments have been added to the GRPC to assist Georgia lawyers in determining their ethical responsibilities.[11]
The preamble to the GRPC notes the various functions that an attorney assumes. These functions include the obligation as an advocate to "zealously [assert] the client's position under the rules of the adversary system," as well as the lawyer's duty as a negotiator to seek "a result advantageous to the client but consistent with requirements of honest dealing with others."[12] This acknowledgement within the GRPC of the multiple roles that an attorney performs supports the proposition that the GRPC are intended to apply to lawyers representing clients in mediation, as well as in traditional adversarial settings.
Zealous Advocacy is Not Incompatible with Mediation
Some commentators seem offended by the notion that litigators should play a meaningful role in mediation.[13] Lawyers who represent clients in mediation, however, should not allow this argument to compromise the fundamental principle that an attorney should zealously advocate on behalf of a client in mediation, just as is required in arbitration or litigation. Nevertheless, the lawyer representing a client in mediation may find it appropriate to exercise that zeal in a less adversarial manner that is more consistent with the tone of mediation.[14]
Allocation of Authority in Mediation Between Lawyer and Client
Rule 1.2(a) of the GRPC (Scope of Representation) states in pertinent part as follows: "A lawyer shall abide by a client's decisions concerning the objectives of representation . . . and shall consult with the client as to the means by which they are to be pursued. A lawyer shall abide by a client's decision whether to accept an offer of settlement of a matter."[15] The rule makes no setting-based distinction as to its application, and thus it applies to representation in business transactions, mediation or litigation. Indeed, a client often may play a bigger role in the mediation process than he/she might assume in a business transaction or in the trial of a case. Additionally, it is important to remember that it is also up to the client to describe the objectives of representation, which may range from complete vindication to preserving a continuing business relationship with the other party. In all cases, however, the objectives and means of representation should be defined through consultation between lawyer and client.[16]
Of course, the client must decide whether he/she wants to enter into mediation in the first place, as well as decide whether to accept an offer of settlement.[17] The attorney, however, must provide the client with the information necessary to make such decisions. Specifically, Rule 1.4 of the GRPC (Communication) obligates the lawyer to explain the matter "to the extent reasonably necessary to permit the client to make an informed decision."[18] Further, Rule 2.1 of the GRPC (Advisor) requires that the attorney deliver this advice in a candid manner and "not be deterred ... by the prospect that the advice might be unpalatable to the client."[19]
The advisory comments to Rule 2.1 go into more detail with respect to this duty of candor in providing information and advice to a client. The commentary states that a client is entitled to straightforward advice expressing the lawyer's honest assessment, which often may involve presenting unpleasant facts and alternatives.[20] It also indicates that in providing advice, an attorney may refer "not only to law but to other considerations such as moral, economic, social and political factors that may be relevant to the client's situation."[21] Accordingly, an attorney's advice in mediation must address issues beyond the mere merits of the controversy. Rather, the attorney must invite the client to examine issues such as reasonable alternatives to a monetary settlement; the client's psychological preparedness to endure the expense, delay and intrusiveness of a trial; and the likelihood and cost of a total victory. Nevertheless, because no case is risk-free, after all is said and done, the final decision on all of these issues belongs to the client.[22]
Telling Lies—Obligation for Truthfulness in Mediation
Rule 4.1 of the GRPC (Truthfulness in Statements to Others), in pertinent part, states:
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person; or
(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client. . . .[23]
Assuming that Rule 4.1 applies to mediation,[24] ethical issues abound when attempting to define a material fact that must be accurately represented. First, there is the "puffing" issue. Although Rule 4.1 requires lawyers to be truthful, the comments to the rule recognize puffing as part of the negotiation process, as long as that puffing does not materially misstate facts. Specifically, Comment 2, in pertinent part, reads as follows:
This Rule refers to statements of fact. Whether a particular statement should be regarded as one of fact can depend on the circumstances. Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact. Comments which fall under the general category of...
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