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50 U.N.B.L.J. 251 (2001)
Ethics in Mediation: Which Rules? Whose Rules?

handle is hein.journals/unblj50 and id is 255 raw text is: ETHICS IN MEDIATION: WHICH RULES? WHOSE RULES? Patricia Hughes* Introduction As the Ken Murray debacle has painfully shown, questions about ethical standards for lawyers may be complex even with respect to traditional lawyering. Increasingly, however, lawyers are engaged in the less traditional setting of mediation, both as representatives ofclients and as mediators. This development has raised fresh issues about ethics in the mediation context. Should the ethical standards governing lawyers engaged in mediation on behalf of their clients, in their conduct with respect to their own clients, to the mediator and to the other parties, differ from those which apply in the traditional adversarial context and if so, how? should mediators be governed by a code of ethics and if so, promulgated by whom? what ethical standards govern the mediator? to whom are the obligations owed? and does it matter whether the mediator is a lawyer? These questions, particularly those about lawyer-mediators, have been the subject of vigorous debate in the American academic literature. My intention here is to provide a quick Canadian take on some of these issues.' I first consider the lawyer as representative and then the lawyer as mediator, the latter of which appears to raise the most debate. Modifying the usual rules to accommodate the lawyer's representative role is perhaps more easily accomplished than is the identification of the appropriate ethical obligations of the lawyer-mediator and the proper governing authority. The Lawyer as Advocate in Mediation I use the term advocate here because regardless of the differences between the principles underlying mediation and those underlying traditional litigation, the principle that the lawyer is her or his client's advocate does not change. It is how 'Mary Louise Lynch Chair in Women and Law, Faculty of Law, University of New Brunswick. This is hardly a new discussion: see A.J. Piie, The Lawyer as Mediator: Professional Responsibility Problems or Profession Problems? (1985) 63 C.B.R. 378. But I suggest the issue has become more urgent as a result of the rapid spread of both voluntary and mandatory mediation.

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