The third-party lawyer is always pressured while mediating the dispute resolution between the clients. The situation is aggravated if to take into consideration the presence of the clients’ lawyers that sometimes do not take necessary measures to minimize the conflict between the counter parties. The mediator or the third party lawyer and his role in the decision making process is still on issue (Sanders et al. p. 355). Therefore, it is necessary to decide the boundaries of the lawyers’ obligations and the ethical issues to follow in case he/she serves as the arbitrator.
Before defining the constraints of the lawyer, it would be reasonable to clarify his/her specific role for being mediator. In this respect, the lawyer may be the harmonizer of the conflict between the counter-parties and, thus, he/she balances the situation if there is no consensus between the clients’ lawyers. However, the mediator can only help the lawyers to a reasonable decision but not participate in the final stages of the case. The layer in the role of mediator should also be concerned about the result of the litigation as well as he should interfere into the clients’ dispute without the consent of their advocates (Markovits, Daniel 2008 p. 35).
According to the ABA Rules of Professional Conduct, the lawyers are restricted in their power in terms of advocating their clients since there are scattered cases when the disclosure of the information may do harm to a client. The rule 1.6 point (b) runs:
“(b) a layer may reveal information relating to the presentation of a client to the extent the layer reasonably believes necessary” (Center for Professional responsibility 2008 p. 22).
This point is still ambiguous and imposes a great liability on the lawyers since they are entitled to make the decisions for their clients. On the one hand, this issue is logical and consistent since the priority is given to the law and its strict following whereas the clients’ self-interest is neglected. In this case, it is difficult to decide to decide whose part should be taken since the lawyer is frequently put in the tight corner when he/she should decide how to handle the clients’ information and to what extent the information should be revealed. This issue is the most controversial because the client is entitled to keep the secret data unleashed (Carle, S. 2005 p. 308). However, the lawyer is not insured for the clients giving false information and, hence, the problem arises: could this be the infringement of the law? (Rabin Jack p. 729) The answer depends on the neutrality of the lawyers’interest. Owing to the reduced ethical responsibility in mediation, the lawyers may be knowingly ignorant of some facts about their clients. This way-out may deprive them of punishment and it would be almost impossible to prove that they behaved unethically. On the other hand, in case the lawyer is aware of the truthfulness of the testimony, it should be given in the pursuit of the clients’ interests. In addition, there should be the distinction between the “innocent ignorance and willful ignorance” (Rabin Jack p.729).
Consequently, if to take the ABA Rules of Professional Conduct, the rules are mostly directed on the least obedience to the law that sometimes do not coincide with clients interests (Parker, C. & Adrian, E p. 23). Sometimes, the role of ethic of care defines the lawyers’ social role in advocate-clients relationships. There are cases when social relationships and avoiding harm to the client are more significant than justice focused on the plain following of the law. In this respect, the lawyer and the mediator can act in two approaches. Thus, there can be “a responsible lawyer” and “adversarial layer”. The first one centers on the advocate’s role of guardian of the law. The responsible lawyer still defends the client but his/her primary goal is to administer justice and to preserve the legality of the case. Therefore, the advocate acts in terms of the public interest. Such approach is applied in the Modern Rules of Professional conduct since all principles are directed on the preserving the institutions of law in the most relevant form. As for professor Kovach approach (2001), it refers to the acknowledgement of non-adversarial approach. According to it, the paramount importance is given to the maintaining the social goods and, sticks mostly to social ethics. In this case, the lawyer makes an accent on the advocate-client relationships and considers social responsibility more important (Parker, C. & Adrian, E. 2007 p. 25). According to Kovach (2001), the mediator should tale the least participation in the problem solving and as well as obey the letter of law. The mediator should know the boundaries of the arbitrator and interfere in the lawyer-defendant relationships in case the decision-making process does not reach the outcome. In its turn, the mediator can serve as an advisor for the lawyer by answering questions and reconsidering the agreements before signing (Watnik, W 2003 p. 147).
Another function of mediator is to inform the lawyer how to use effectively the mediation. Besides, the mediator is forced to inform the clients about their rights though the lawyers. The arbitrators should not go beyond their commission and as the lawyers should be subjected to the court (Picard, A. C 2004 p. 187). In their turn, the lawyers should not step aside and allow the arbitrators to act as an actual decision makers. The mediator is a person who can only to analyze and to formulate the clients’ claims. As it was mentioned before, the role of mediator also lies in clarifying the points of the clients’ confidentiality. In addition, unlike lawyer, the mediator should deal with other matters such as location and timing.
Finally, mediator plays an important psychological role. Hence, the arbitrators’ main task is not to judge and to decide what is right and what is wrong. He or she is not legally bound and cannot be the direct advocate. Instead, the mediator should just help to find the decision and to bring the opposed parties together (Lovenheim, P, & Gruerin, Lisa p.15).
In addition, the position of the mediator refers fundamentally to the communication between the clients and reduces to the negotiation of the dispute. Therefore, the mediator should control the information flow between the clients and their advocators since supervising is a significant tool in handling the dispute resolution. Besides, the mediator’s function is to provide a more acceptable data in order to more the discussion more formal and to prevent the emergence of possible conflicts (Lovenheim, P, & Gruerin, Lisa p. 21). In conclusion, there should be a strict distinction between the obligation of the lawyer and the mediator. A lawyer who acts as mediator should constrain the legitimacy and follow the rules of arbitration.
Reference List
Carle, S. (2005) Lawyers’ Ethics and the pursuit of social justice: a critical reader New York: NYU Press.
Center for Professional responsibility (ABA) (2008) Model Rules of professional conduct US: American Bar Association.
Kovach, K (2001) New Wine Requires New Wineskins: Transforming Lawyer Ethics for Effective Representation in Non-Advercial Approach to Problem Solving: Mediation.
Lovenheim, P, & Gruerin, Lisa (2004) Mediate, Don’t Letigate: Strategies for Successful Mediation US: Nolo.
Markovits, Daniel (2008) A modern legal ethics: adversary advocacy in a democratic age. US: Princeton University College.
Parker, C. & Adrian, E. (2007) Inside lawyers’ ethics. US: Cambridge University press.
Picard, A. C. (2004) The Art and Science of Mediation Canada: Emond Montgomery Publication.
Sanders, Rogders, Goldberg, and Cole Dispute Resolution, Negotiation, Mediation, and Other Processes pp. 355- 363
Rabin Jack (2003) Encyclopedia of public administration and public policy. New York: Marcel Dekker.
Watnik, W. (2003) Child Custody Made Simple: Understanding the Laws of Child Custody and Child. US: Single Parent Press.