Much has been written about the extent to which candor during mediation is required. Some authors argue that deception is part of the "game" of negotiation and is fully expected to occur, whereas others argue that legitimate negotiation requires complete honesty. This article addresses the issue not from the perspective of scholarly debate, but based upon application of the Georgia Rules of Professional Conduct and the Professionalism Principles adopted by the Chief Justice's Commission on Professionalism.
Comment 5 to Rule 2.4 provides "[l]awyers who represent clients in alternative dispute-resolution processes are governed by the Rules of Professional Conduct. When the dispute-resolution process takes place before a tribunal, as in binding arbitration (see Rule 1.0(r)), the lawyer's duty of candor is governed by Rule 3.3. Otherwise, the lawyer's duty of candor toward both the third-party neutral and other parties is governed by Rule 4.1." Because mediation typically occurs outside the context of a "tribunal" as defined by Rule 1.0, this article will focus on Rule 4.1.
