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Lawyers acting as mediators:
ethical dilemmas in the shift from advocacy to impartiality
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About the session Traditionally, a legal representative's boundaries with respect to counselling, advocating and advising have been defined in one dimension, namely, acting in their clients' best interests. The role of the third party facilitator imposes a distinct set of ethical dilemmas and obligations requiring standards for impartiality, fee payment, conflict, confidentiality, professional conduct and fairness. Where lawyers act as mediators, challenges arise in the transition from an advocate for a single party, to a neutral process manager (in facilitative mediation). Focus will be had on challenges facing professionals, and insights provided into possible solutions/tools. The aim will be to engage all practitioners in discussion about best practice in the shift from advocate to neutral. In these cases, discipline and self-awareness are essential to achieve the required mindset of a neutral and impartial facilitator. In order for an effective facilitation, ADR practitioners need to be conscious of their own biases, values, instincts, experiences and education and assess which attributes should change and which should intensify. It is clear rules, guidelines and recommendations alone will only go so far in assisting this paradigm shift a lawyer must actuate when “changing hats”. Some sort of standardised training must accompany this shift to ensure the ethical and practical competencies underpin consistent best practice and fulfilment of the parties' process needs in ADR. Podcast: Listen to Naomi and Natascha talk about this session (4 mins) >> |
Naomi Cukier
Naomi is a lawyer and nationally accredited mediator. She is undertaking a Masters in Law, specialising in ADR.
Naomi is the National Learning and Development Manager at Lander & Rogers Lawyers as well as an associate of the ACPACS, The University of Queensland. She has researched, trained and consulted on negotiation in corporate, government, educational, academic and legal sectors (nationally and internationally).
Natascha Boehm
Natascha is Legal Counsel of the Employee Relations Department at Coles and nationally accredited mediator.
Natascha has both mediated workplace relations disputes and represented clients at a tribunal level, in arbitrations and conciliations in the area of labour relations/discrimination. She is currently completing a Masters in Law, specialising in ADR and Labour Relations. Natascha sits on the Executive of the Industrial Relations Society of Victoria and the Employment and Industrial Relations Committee of the Law Institute of Victoria.
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