It is true that in Victoria and in England and Wales, client-lawyer mediation is handled by officers of the legal professional associations. Similarly in this report, the Commission has decided to refrain from specifying precisely who may or may not serve as a mediator for the run of client-lawyer disputes. Rather, the Commission has recommended that the professional Councils maintain a list of mediators for this purpose, in consultation with the Legal Services Ombudsman and the Director of the Community Justices Centres. We accept that no one is automatically qualified to perform the role of a mediator simply by virtue of professional or occupational qualifications in another discipline, or because of appropriate personal qualities. The role requires knowledge and skills of a distinct process.
Training is the most effective way for a person to acquire expertise.
Failure to undergo training in the process increases the risk that a mediator's behaviour will be incompetent and unethical, and of harm to clients. We also propose, in Recommendation 18, that the training program should be developed by the professional Councils in consultation with the Director of the Community Justice Centres and the Legal Services Ombudsman, and that a Code of Conduct for mediation between lawyer and client be developed in the same manner. The Commission recognises that privilege ought normally to attach to confidential communications made during an attempt at consensual dispute resolution. Such informal processes only work if the parties are assured that there will be no negative repercussions flowing from candid conversation or the spirit of compromise. However, as foreshadowed in DP 26, the Commission also recognises the need for an exception to the proposed general rule about privilege with regard to admissions or communications which reveal dishonesty or irregularities in dealings with trust accounts or controlled funds.