In the latest episode of The Resolution Room, I explore a crucial but often overlooked aspect of legal practice: the ethical landscape of negotiation and mediation. In circumstances where modern lawyers go to court far less than we used to (with the overwhelming majority of disputes now resolved out of court) the ethical obligations of solicitors in non-court settings have never been more important - and are often not given enough attention in the day to day of a busy practice.
It’s trite to say that “game theory" does not apply to negotiations in the legal context. It is a common trap for practitioners to treat negotiation as an ethical grey zone, a place where strategy eclipses integrity — with courtroom conduct held to a higher standard. This view ignores the role that ethics play in ensuring fairness and trust in dispute resolution systems where settlement, not trial, is the norm.
While practitioners may turn their minds to what constitutes a material fact in any negotiation, I think less attention to given to the posturing that occurs at the 'pointy end' of a negotiation, that is, whether comments made in this context can fall below the required ethical standard. Rule 22 of the Australian Solicitors’ Conduct Rules makes it clear that a practitioner’s duty not to mislead extends beyond material facts to include the compromise of a matter. This means that solicitors must be truthful not only about what has occurred but also about their client’s position in relation to any offer or resolution.
This stands in contrast to the American model, where the ABA Model Rules allow a lawyer greater leeway. In the U.S., statements regarding a party’s willingness to settle or valuation of a claim are often considered “puffery” — strategic positioning rather than potentially misleading conduct. The Australian rule sets a higher ethical bar and requires more precision and honesty from practitioners in the negotiation process.
This is not merely academic. In practical terms, lawyers should take care with their language. For instance, it is often better to avoid using the “F word” - final - and instead say, “That is the limit of my client’s present instructions,” or "on my present instructions that is all my client is prepared to accept/offer". It may seem like a subtle difference, but in ethical terms, it can matter. Precision in your language to an opponent and a mediator does matter - the requirement being to convey your client's strategic imperatives whilst not overstating or plainly misstating your client's instructions (assuming of course these instructions are known to you!).
While Rule 22 may be difficult (nigh impossible) to effectively police, its existence reinforces the need for care and integrity in out-of-court resolution. At a time when out of court settlement is the prevailing norm, this ethical foundation is not ancillary but rather central to the proper administration of justice.
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.
