The Truth about Honesty and Candour in Mediation: What the Tribunal Left Unsaid in Mullins' Case
Wolski, Bobette, Melbourne University Law Review
[Some commentators have suggested that, as a result of the decision in Legal Services Commissioner v Mullins, legal representatives owe different standards of honesty and candour in mediation from that which they owe in litigation. This article challenges that proposition. The author argues that legal representatives owe exactly the same standards irrespective of whether they are acting in mediation or in litigation. The decision in Mullins did not change the law in this respect. In fact, the Tribunal did no more than iterate the existing law governing relations between legal representatives and their opponents. As to the duties owed by legal representatives to mediators, the case provides no insight at all. There is also a dearth of literature on the topic. The purpose of this article is to provide some insights on the duties of honesty and candour owed by legal representatives for parties in mediation.]
CONTENTS I Introduction II The General Duties Owed by Legal Representatives in Mediation III Current Requirements in Relation to Honesty and Candour A Professional Conduct Rules B Other Components of the Law of Lawyering IV The Impact of Other Obligations Owed by Lawyers A The Question of Good Faith Participation 1 Professional Conduct Rules 2 Other Components of the Law of Lawyering B Requirements in Relation to Cooperation 1 Professional Conduct Rules 2 Other Components of the Law of Lawyering C Requirements in Relation to Fairness 1 Professional Conduct Rules 2 Other Components of the Law of Lawyering V Lawyer Independence as against Client Authority: Resolution of Conflicting Duties VI Mullins and Garrett Revisited VII Conclusion and Directions for Further Research and Analysis
The case of Legal Services Commissioner v Mullins ('Mullins') (1) has been discussed in numerous articles, commentaries, case notes and texts. (2) The facts of the case are reasonably well-known, at least in mediation circles: in the mediation of a claim for damages for personal injuries, the plaintiff's barrister (Mullins) failed to disclose to the defendant and its insurer that the plaintiff had been diagnosed with terminal cancer subsequent to the preparation and exchange of expert reports detailing the plaintiff's assumed life expectancy. Estimates of losses and future care needs were based on that assumption. The defendant settled in ignorance of the plaintiff's cancer diagnosis and on the basis of the inaccurate reports. Mullins was found to have intentionally and fraudulently deceived his opponent and was fined for professional misconduct. It is less well-known that the instructing solicitor in the matter, Mr Garrett, was similarly dealt with by the Legal Practice Tribunal several years later. (3) Following from the decision in Mullins, it has been suggested that '[t]he obligation of truthfulness in a mediation context is different from that required in litigation and negotiation'; (4) that legal representatives have a positive obligation to disclose the relevant facts during a mediation; (5) and that they have a duty 'to be forthright and honest' (6) when mediating. In the author's opinion, Mullins is not authority for these propositions. Currently, legal representatives in Australia owe exactly the same obligations of honesty and candour in mediation (7) as they owe in litigation; in neither context do they owe a general duty to be candid, open or forthright.
This article seeks to answer the following related questions:
1 Are legal representatives in Australia required to be honest and candid in mediation and, if so, what are the appropriate standards of honesty and candour required of them?
2 If these duties exist, to whom are they owed?
3 When should these duties, if they exist, supersede or conversely give way to the duties owed to a client?
These questions highlight three preliminary points that are central to an understanding of the disclosure obligations of legal representatives in mediation (and in any other context). …