Lawyers’ ethical and practice norms in mediation: including emotion as part of the Australian Guidelines for Lawyers in Mediation

Abstract

ABSTRACT Lawyers’ practice in mediation is evolving with the widespread use of processes other than litigation which have been commonly referred to as the alternative dispute resolution (‘ADR’) options in Australia. Legal representation in mediation is part of the changing nature of legal work and is informed by the Australian Solicitors’ Conduct Rules (‘ASCR’) and practice guidelines. This article explores selected areas in the Law Council of Australia Guidelines for Lawyers in Mediation (‘LCA Guidelines’) and the ways that these guidelines provide a normative framework for practice including the incorporation of ethical rules. The article argues that the guidelines should be revised to promote legal practice that includes emotion, which may encourage settlement by assisting in identifying core concerns. It draws on a variety of Australian empirical studies on emotion including lawyers’ practice and judges’ engagement with emotion in their role. It recommends revising the LCA Guidelines to better engage with emotions, and additionally, the opportunity for law school dispute resolution curriculum to incorporate engagement with emotion using the LCA Guidelines is raised.