I have been preparing a paper and presentation on ethics in negotiation and mediation, and it has reinforced something that has struck me for a long time — there is limited literature on this critical topic, and it is not taught nearly enough.
Mediation is still a relatively new player in the legal landscape. Historically, much negotiation happened in the corridors of the court, often led by barristers just before (or during) a hearing. That is no longer the case. Negotiation and mediation have become fundamental to dispute resolution, yet ethical considerations in these settings rarely receive the same attention as courtroom conduct.
We are well aware of our ethical obligations to the court, but do we give the same thought to our obligations to our opponents in negotiation? Too often, negotiation is seen as a 'game,' while court is when things get serious. Trite to say this view is flawed - negotiation and mediation are not honesty-free zones. There is a level of posturing to be expected, but equally there is a level of information interdependence which we can and should be able to rely upon.
It is more than just compliance with conduct rules; it’s about maintaining the integrity of our profession and ensuring fair, sustainable outcomes. The question is: where do we draw the line between strategic positioning (allowable 'puffery') and misleading conduct?
If you are interested in an hour-long presentation on this topic, let me know.
I cover the relevant legal principles, the Solicitor Conduct Rules, and applicable (albeit fairly limited) case law. More critically — I aim to provide practical examples of when puffery can tip over into unethical behaviour.
Reach out if you would like to know more.
I regularly share short insights on mediation, negotiation and all things leadership. From how to optimise success in negotiations, to the skillset required to sustain high team performance and promote resilience. I share these video reflections, drawing from my experience both as a former leader in professional services and now as a mediator and leadership coach.
"Damien is an incredible Mediator. He is experienced, is always across the brief and has a depth of legal knowledge that can assist the parties to navigate even the most complex issues to reach a resolution. Damien is my first choice for any Mediation, especially for vulnerable plaintiff’s feeling overwhelmed by the process as they are immediately comforted by his affable and empathetic nature.”
Damien was engaged as an Executive Coach in our business to navigate a half-decade of poor habits, realign our leadership team and position us for a strategic exit.Facilitating an executive workshop was instrumental in resolving internal conflicts and realigning us to a collective focus on future opportunities.
I have especially appreciated your logical and calm approach to problem solving, and I have valued your methodical and composed demeanour in tackling complex issues. You have not only equipped me with effective strategies but also instilled a sense of confidence and clarity in my own decision making processes.
