Date of this Version


Document Type

Journal Article

Publication Details

Submitted Version.

Wolski, B. (2013). An evaluation of the rules of conduct governing legal representatives in mediation: Challenges for rule drafters and a response to Jim Mason. Legal Ethics, 16(1), 182-215.

2013 HERDC submission. FoR code: 180106;180123

© Copyright Hart Publishing, 2013

Reproduced with permission.




This article provides a comparative analysis of the rules of conduct governing legal representatives in Australia, the United States of America and the United Kingdom as they apply to a range of ethical issues in mediation. The analysis has four main aims. First, it clarifies the position in Australia and the USA - the Australian and American mediation communities have not introduced separate codes for ‘mediation advocates’ as Mason recently suggested. But some provisions have been made for mediation practice. The second aim is to tease out from these provisions learning points for policy makers and rule drafters. Amongst the points to consider is whether or not, and under what circumstances, mediators should be regarded as courts, or as third parties for the purpose of the rules. Third, the analysis provides some grounds for arguing that the current rules of conduct are appropriate for legal representatives in mediation. Fourth, it identifies challenges associated with proposals to introduce rules which require legal representatives to participate in mediation in good faith in a non-adversarial manner according to higher standards of honesty and candour. The article concludes by identifying a number of assumptions which permeate the literature on this topic.



This document has been peer reviewed.


To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.