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Alternative dispute resolution: Manners and mediation

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Cite as: Jan/Feb 2015 89 (1/2) LIJ, p.81

Good manners and common sense are important for successful mediation.

As mediation becomes more popular, assuring the quality of mediation services has become an increasing challenge. Mediation operates with few formal restrictions or structures for quality control. The very foundation of its success is attributable to the confidential nature of it, but with that shroud of confidentiality comes a lack of comparative analogy between a good mediation and a bad one.

There is no customary practice for the various types of mediation models and styles in play, which may or may not be guided by private agreement, legislation, professional rules or practice standards set by particular bodies and institutions to which the mediator subscribes. At the end of the day, much of what constitutes a mediator’s competency comes down to understanding the process, facilitating good communication between the parties, good manners and common sense.

In truth, few parties have sued mediators for injuries stemming from mediation-specific conduct, and none of those suits has resulted in an enforced legal judgment against a mediator. In some cases, participants in a badly conducted mediation will have lost nothing more than the time they invested in the mediation and whatever fees they have paid to the mediator. In less fortunate circumstances, however, participation in a failed mediation may cost disputants psychologically, strategically and financially. The tale of the poorly conducted mediation will find itself in the book of war stories for many years, which not only affects the reputation of the individual mediator, but also the reputation of the ADR process.

Many poor behaviours relate to the mediator being oppressive or unfair and usually point to a failure to take the parties’ personal and emotional needs into account. The consequence of this failure could possibly open up any settlement agreement to challenge. Much has been written about the matter of Tapoohi v Lewenberg,1 in which Mrs Tapoohi claimed that the mediator breached the mediation contract and was negligent. The affidavit material stated that an in principle agreement had been reached late into the evening when the parties and their lawyers were hungry, tired and worn out, as well as needing to obtain specialist tax advice. It was alleged that the mediator insisted that the terms of settlement be signed that night, saying words to the effect, “We are doing it tonight. That is the way I do it”.

The mediator then dictated the terms with little input from the parties or their lawyers. On a summary judgment application brought by the mediator, Habersberger J dismissed the application and held that it was not beyond argument that the mediator could be in breach of contractual and tortious duties.

Mediators are also not always as neutral as they could be. Accusations of systemic bias and sustained and unconscionable duress to settle have been reported,2 as have accusations of power imbalance where the mediator has allegedly not controlled a bank seeking to enforce its securities against an individual mortgagor. The mortgagor complained that the mediator caused him stress, anxiety, agitation and exhaustion, about which the mediator was later subpoenaed to give evidence.3

While there is nothing prohibiting a mediator from meeting with the parties’ legal representatives (excluding the parties themselves), the decision to do this needs to be carefully balanced with the fundamental principle of mediation, which is that the primary responsibility for the resolution of a dispute rests with the participants.

According to the Law Council of Australia’s Ethical Guidelines for Mediators issued in August 2011, “A mediator facilitates communication, promotes understanding, assists the parties to identify their needs and interests, and uses creative problem solving techniques to enable the parties to reach their own agreement”. Parties generally want to participate in the process and are disappointed when they cannot. There have been surveys done revealing that parties have been left out of the mediation for most of the day experiencing a “legal takeover”, or were left literally sitting out in the cold.4

Mediators can be granted immunity by legislation, usually where the mediation is court ordered and court-annexed, but the immunity clauses inserted in private mediation agreements are generally void for infracting s7.2.11(2) of the Legal Profession Act 2004 which states: “An Australian lawyer . . . must not make any agreement or arrangement with a client to the effect that the lawyer will not be liable to the client for any loss or damage caused to the client in connection with legal services to be provided on or after the date of the agreement . . . to the client for which, but for the agreement . . . the lawyer would be liable”. Section 1.2.1 defines “client” to include “a person to whom or for whom legal services are provided”. awyers who mediate provide legal services to the parties to the mediation and should think twice before inserting an immunity clause in the mediation agreement.5

The diversity of mediation practice has meant that the boundaries of acceptable mediator behaviour are not clearly defined. It would be wise for mediators to follow the National Mediator Accreditation Standards (NMAS) Practice Standards (or their own similar standards if set by a different body). These standards, if they were to be read carefully and carried out in practice, address the behavioural matters touched on here, including impartiality and procedural fairness, as well as many other core competencies expected of mediators. Somewhere between the lines are those intangible things called empathy and courtesy, which equally contribute to a successful mediation.

ALEX FOGARTY is a member of the Victorian Bar and an accredited mediator with the Victorian Bar. She is a panel mediator with VCAT and a member of the LIV ADR Committee.

  1. [2003] VSC 410 (21 October 2003).
  2. Bank of NSW v Freeman (unreported SCNSW, 31 January 1996, Badgery-Parker J).
  3. National Australia Bank Ltd v Freeman [2000] QSC 295 Ambrose, J.
  4. Tania Sourdin, “Poor Quality Mediation – A System Failure?”, Australian Centre for Justice Innovation. 15/2/2010 p6. 5. Mary Anne Noone, “Liability Matters for Lawyer Mediators”, (2007) 81(10) LIJ 52.


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