LPBT Update – Mediation and Its Role in the Complaint Process and Generative AI Viewed Through a Regulatory Lens

Recently, representatives of the Legal Profession Board of Tasmania (“the Board”) attended the Society to deliver the Board’s Annual Update for 2025 as a Continuing Professional Development event. Attendees were provided with an overview of the Board including information about its operations and functions; with a focus on statistics and activities relevant to the Board’s complaint handling function. Much of that information can be found in the Board’s latest Annual Report. Two other topics were considered. The first of which was mediation and its role in the complaint process. The second topic explored the use of Generative Artificial Intelligence (AI), through a regulatory lens.

Mediation – friend or foe?
It is well understood that mediation can be an effective alternative dispute resolution tool. Mediation in the context of the Board’s complaint handling function is no exception. Indeed, mediation is endorsed as such through Part 4.3 of Chapter 4 in the Legal Profession Act 2007 (Tas) (“the Act”).

The how and why
Derived from Part 4.3 of Chapter 4 of the Act, mediation may take one of three forms:

1. Firstly, where the Board plays no role in the process (being mediation outside the express auspices of the Act); the Board need not have knowledge of the process of mediation;
2. Secondly, where the Board ‘endorses’ mediation in that the Board considers the complaint is capable of resolution by mediation and it suggests to the parties that they enter into a process of mediation but otherwise leaves it to the parties to, between themselves, establish and follow through with the mediation; or
3. Finally, where the Board ‘endorses’ mediation and the Board plays an active role by facilitating the mediation – this usually involves the Board engaging and appointing a mediator.

The object of mediation, of course, is the resolution of the complaint. Assuming the mediation to be successful, the mechanism by which the complaint is resolved is through the complainant withdrawing the complaint under s 434 of the Act.

The Board encourages practitioners, who are the subject of a complaint, to ensure that mediation, as a means of resolving the complaint, is on their radar. Mediation has the potential to result in an expeditious and satisfactory outcome for the key stakeholders: the complainant, the practitioner and the Board. Benefits to the practitioner in this regard have great appeal and include the avoidance of additional stress, time and cost (none of which should be underestimated) associated with engaging in an enduring complaint process.

The ‘but’
However, there are some potential countervailing considerations which suggest mediation should not be embraced by a practitioner in all instances:

1. Mediation may not be suitable in all scenarios. For example, where the relationship between the practitioner and the complainant have broken down to such an extent that it is effectively incommunicado or the parties are anchored to diametrically opposed positions with respect to the facts alleged. Mediation is best suited to complaints described as ‘consumer disputes’ such as issues with billing, poor service or communication;
2. Mediation that procures a withdrawal of the complaint by the complainant does not guarantee the end of the matter. Section 434(7) of the Act preserves discretion for the Board to nevertheless ‘bat on’ with the complaint;
3. Connected with the previous point is the precondition to mediation, under the auspices of the Act, that the Board considers that the practitioner would not be likely to be found guilty of professional misconduct (the more serious form of conduct on the disciplinary continuum);
4. Mediation outside the auspices of the Act has the potential, if not conducted appropriately, to be viewed as an attempt to prevent or pervert the course of justice.

Of primary concern to a practitioner would be the prospect that the Board may ‘bat on’ with the complaint, notwithstanding its withdrawal.

Lawyer considerations
While the Board cannot and does not provide a preliminary view as to whether it will exercise the discretion conferred in s 434(7) of the Act in any given matter, relevant considerations that a practitioner ought carefully weigh in forming a view about mediation include:

1. the evidence;
2. the conduct likely to be established;
3. the likely or possible characterisation of the conduct is relevant (unsatisfactory professional conduct or the more serious professional misconduct);
4. what risk the conduct poses to:
   a) consumers of the services of the legal profession and the public generally;
   b) the reputation of the legal profession;
   c) the proper administration of justice (as to which, see ss 3 and 417 of the Act and Legal Profession Board of Tasmania v Lester [2021] TASSC 41 at [41]); and

5. therefore, whether there are any tools in the disciplinary toolbox that might be more appropriate, than mediation, to employ or deploy to better respond to that risk.

Mediation – key takeaways

1. The settings in which mediation may be ripe for use in the resolution of a complaint may be limited.

2. Practitioners should be mindful that resolution of a matter through mediation and withdrawal of the complaint may not necessarily equate to the discontinuance of the complaint investigation by the Board. The particular circumstances of the matter should be carefully weighed in this regard.

3. However, if, after strategic consideration of the matter and the settings permit, practitioners are encouraged to participate and engage in the process of mediation with genuine intent.

Generative Artificial Intelligence – through a regulatory lens
Undoubtedly, Generative Artificial Intelligence, or GenAI, presents great opportunities for the legal profession.

In the UK, the Solicitors Regulation Authority reported that by the end of 2022:

• three quarters of the largest solicitors’ firms were using AI, nearly twice the number from just three years ago
• over 60% of large law firms were at least exploring the potential of the new generative systems, as were a third of small firms

Even outdated statistics demonstrate the rapidity of change and speed of uptake of this new technology!

GenAI can assist with drafting documents, summarising information, analysing information and conducting legal research; all of which has the potential to save time and bolster the robustness of legal services provided.

Risks
However, the use of GenAI comes with risks:

1. Quality assurance – outputs may be unreliable and incomplete, there may be bias, and outputs may simply be wrong (hallucinations (false content));
2. Breaches of obligations around privacy, confidentiality, legal professional privilege and intellectual property and also suppression obligations, for example the Harman undertaking;
3. Reputational risk; and
4. Breach of professional rules/obligations.

Relevant professional rules
In respect of the latter, there are a number of relevant rules including rules 8, 9, 13, 16, 24 and 43 of the Legal Profession (Solicitors’ Conduct) Rules 2020 (Tas) and rules 4, 8, 24, 25 47, 114 and 115 of the ‘model rules’ identified in the Legal Profession (Barristers) Rules 2016 (Tas).

Risk mitigation
Risk mitigating strategies include:

1. Comply with court and regulatory body guidelines and professional rules;
2. Review all GenAI outputs for accuracy and veracity;
3. Establish, maintain and regularly monitor effective workplace policies that are designed to effectively address the risks;
4. Discharge your supervisory duties (of staff and lawyers); and
5. Keep your client informed about how it will be used, how it will impact on costs and obtain client consent.

A recording of the recent 2025 Update: Legal Profession Board of Tasmania (LPBT) can be accessed here.

Merrilyn Williams, Manager Operations
Richard Scaife, Senior Investigations Officer
Legal Profession Board of Tasmania
May 2025