Regulating Lawyers' Behaviour in Mediation: A Chinese Perspective

Abstract

Mediation activities have proliferated in mainland China and Hong Kong over the last decade. The Chinese government promoted mediation to maintain social stability for economic reforms, while the Hong Kong judiciary hoped to cure the ills of complexity, cost and delay in its civil justice system. Consequently, lawyers have been increasingly involved in mediation as parties’ legal representatives. Their new role raises important ethical considerations, such as where a client instructs his or her lawyer to attempt mediation for improper purposes, or a legal representative bluffs about the value of the case. The core issue arises as to whether and how the current legal framework and rules of professional conduct regulate lawyers’ behaviour in mediation, which is masked by the private nature of the process and the principle of confidentiality. Jim Mason and Bobette Wolski are the latest contributors to this debate, focussing on the jurisdictions in the UK, the US and Australia. This paper examines the general duties owed by legal representatives to their clients in mediation in mainland China and Hong Kong. In so doing, it provides a comparative analysis of how existing legal and professional conduct rules could resolve potential ethical dilemmas in mediation. It concludes by arguing whether rules are the best way to modify the behaviour of lawyers.