Mediation and Good Faith

In the matter of Solicitors Regulation Authority (England & Wales) v A Solicitor (Case No. 12046-2020), a respondent solicitor has been struck off for deliberately misleading the other party's legal representatives and a mediator that he had instructed a barrister to represent his client at a mediation between the parties. On the face of it, the (England & Wales) Solicitors Disciplinary Tribunal's decision may seem harsh. However, while the statement of agreed facts in the tribunal proceedings is unusual, there are lessons to be had for practitioners.

Although the respondent's alleged dishonesty was not an essential part of the allegations that he faced, his misleading statements were found to have been dishonest. His conduct was found to be in breach of the duty to act with integrity or the duty to act in a manner that maintains public trust in the profession or both. These professional principles mirror a Hong Kong solicitor's duties, pursuant to Solicitors Practice Rule 2 (a) and (d), and the duty to act in good faith (the Guide to Professional Conduct, 11.01).

The misrepresentation was discovered by the other party's solicitor who checked with the barrister's chambers to confirm whether the barrister had indeed been instructed to attend the mediation. They discovered that the barrister had not been instructed to attend and, apparently, that she had been away from chambers on holiday at the time. It was the other solicitors' firm who reported the matter to the Solicitors Regulation Authority. Reading between the lines there may have been some animosity between the respective lawyers, although it is not clear what the basis for this was.

Several points are worth noting.

  • A mediation is a voluntary process and, therefore, requires good faith to be exercised on all sides. To be effective, there is a legitimate expectation on all sides that the parties will fairly represent how they intend to proceed. 
  • It is unlikely to be an excuse in subsequent disciplinary proceedings for a solicitor to argue that the mediation could still proceed in good faith on the day in question when he or she has made a deliberately misleading statement – in this case, to the effect that a barrister had been instructed to represent their client. It is difficult to see how this misrepresentation could reasonably have been discovered prior to the day of the mediation. 
  • A party will want to consider the approach being adopted by the other side in preparing for the mediation, including details of who will be attending on its behalf. Discovering that you have been misled at the start of the mediation by the other party is likely to destroy any confidence in their good faith and in the process itself.
  • Good practice is for the parties to attend a mediation with their legal representatives. Where a party's lay representatives attend a mediation they should be familiar with the underlying dispute and have express authority to give instructions and to settle. 
  • A solicitor has an independent duty to consider whether some form of ADR is in a client's best interests, irrespective of the client's own thinking or strategy. However, it is not in a client's best interests to seek to obtain some tactical advantage by misrepresenting how they will proceed at the mediation, even where the mediation can still take place on the day in question. 
  • If a solicitor believes that a refusal to mediate is reasonable in all the circumstances (for example, because the other party is deliberately and unreasonably "overplaying their hand") it may be better to decline to mediate for the time being, rather than to proceed with a mediation based on a misleading pretext. Alternatively, one could choose to proceed with the mediation and bring the other party's questionable tactics to the attention of the mediator.
  • If a misleading statement appears in a party's Mediation "Position Statement" it is the responsibility of the solicitor who prepared the document to correct it. It is unlikely to be an excuse that a supervising principal should have corrected the misleading statement, even though he or she has a duty to supervise. 

Finally, there is also the point that there is nothing to be gained in irritating the lawyers for the other party by adopting unprofessional tactics, as this could lead to them making a professional conduct complaint (with all the time and costs associated with that). 

– David Smyth, Senior Consultant and Accredited Mediator, RPC 

Jurisdictions: 

Senior Consultant and Accredited Mediator, RPC