Where Do Mediators (and Mediation) Fit in the Regulatory Scheme Governing Lawyers? Unexplored and Unintended Consequences of Treating Mediators as Courts
Bibliographic record
Abstract
Mediation is now an integral component of the civil justice system. The question arises as to whether mediators should be treated as courts, or alternatively as third parties (it seems clear that they should not be treated as clients). In Australia, the professional conduct rules for lawyers provide a possible clue to the answer to this question as they define the term ‘court’ to include ‘mediations’. Unfortunately, it is not clear what is meant by this reference. In this paper, it is argued that rule drafters intended the reference to ‘mediations’ to mean ‘mediators’. If this is the case, then lawyers owe to mediators all the same obligations – including in some circumstances, an obligation of candor - as they owe to courts. There is another side to this debate. If mediators are considered to be ‘courts’, it may also follow that mediators owe to others (the parties, non-parties affected by the mediation and the general community) obligations to be honest and to ensure fair outcomes. These issues are controversial and in some respects, represent an about-face on the traditional view that mediators are not responsible for outcome fairness. It appears that different answers have been adopted by lawyers’ professional bodies in various common law jurisdictions. This paper will provide a comparative analysis of the rules of conduct governing lawyers in Australia, the UK, the USA and Canada as they apply to these issues. It will consider the implications of treating mediators as courts or as ‘other parties’. The author will make recommendations for change to the professional conduct rules in some jurisdictions including that of Australia.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.040 | 0.049 |
| Meta-epidemiology (narrow) | 0.000 | 0.001 |
| Meta-epidemiology (broad) | 0.001 | 0.001 |
| Bibliometrics | 0.002 | 0.002 |
| Science and technology studies | 0.016 | 0.042 |
| Scholarly communication | 0.029 | 0.035 |
| Open science | 0.004 | 0.012 |
| Research integrity | 0.011 | 0.011 |
| Insufficient payload (model declined to judge) | 0.007 | 0.001 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".