2016 | Diciembre 14
Although mediation is considered by the Indiana Supreme Court to be a “court proceeding,” it is conducted in private, with no judge present. This private nature of mediation and its cloak of confidentiality serve to insulate and isolate the participants from outside scrutiny and, as in golf, with no referee present, the integrity of the process depends on the professionalism of the participants — the mediator and lawyers. Although the ADR rules describe mediation as a “non-adversarial” process, the reality of mediation of litigated cases is that the lawyers are expected, both by the parties and the process generally, to advocate for their client and to attempt to guide the mediation process to meet their client’s ends or interests.
However, just as golfers are admonished to conduct themselves in a manner consistent with the spirit of the game, “irrespective of how competitive they may be,” so too are lawyers bound by the Rules of Professional Conduct to balance their duty of advocacy with a foundational duty to the profession and public generally.