- Stewart Brand
Dispute Resolution Ethics
Updated April 2013
The ethics of dispute resolution are the rules and codes of behavior by which acceptable practice is defined. Both rules and codes of practice vary according to the subject matter of the dispute, the type of process that is being used, the role of the person governed by the rule or code, and the location (or culture). Thus ethical rules and codes for divorce mediators in Mississippi may be very different than for commercial arbitrators in Manhattan, let alone any kind of mediator in Mumbai.
Everyone who encounters a dispute resolution process needs at least a basic understanding of the ethics of that process, and of how ethical conduct is encouraged and enforced.
Ethical problems are presented differently according to circumstance and role. For this reason, ethics codes and rules tend to address quite different problems for neutrals than for parties and their advocates. While the specific concerns of these rules can vary quite widely, a common theme of ethics codes for parties and their negotiators is to demand negotiation in good faith, a concept which includes prohibiting dragging out the negotiations unnecessarily, sending representatives who have no authority to conclude an agreement, and other forms of conduct which tend to make an honest search for mutual agreement impossible. For neutrals, the concerns are different, and may include prohibitions on accepting business in another context from someone who is a party in a case before that neutral; requirements to keep matters discussed in the negotiations confidential; and requirements to disclose friendships and other relationships which might cause concern to either party as to whether the neutral really is neutral.
A hypothetical example concerns a mediator, employed by a Texas state agency, who is assigned to mediate a dispute between a would-be truck driver and a truck driving training school, when the driver refused to pay the school fees, claiming that the practice trucks were unsafe. The mediator, operating under typical confidentiality rules, helps the parties reach a settlement, but later gets a phone call from the chair of the Texas State Assembly's (fictional) Committee on Highway Safety. This powerful state legislator, whose jurisdiction also includes the budget of the agency the mediator works for, demands to know what was said in the mediation about the safety of the trucks — and wants the information right quick. While acknowledging the uncomfortable (or even, potentially, career-ending) dilemma presented to the mediator, mediator groups have been virtually unanimous in arguing that the mediator must refuse to provide the requested information.
Examples of ethics codes for mediators and mediation organizations include the 1994 Model Standards of Conduct for Mediators jointly adopted by the Society of Professionals in Dispute Resolution, American Bar Association, and American Arbitration Association; and two publications of an independent body, the CPR-Georgetown Commission on Ethics and Standards of Practice in ADR, the Principles for ADR Provider Organizations, and the Model Rule for the Lawyer as Third-Party Neutral. These documents and other ethics codes established by a variety of national and state organizations cover a variety of issues, but focus most often on common problems: recurring themes include impartiality, confidentiality, and a neutral's duty to avoid claiming expertise where the neutral has none. If violation of an ethics principle or rule is suspected, the first step is to check what, if any, code of ethics is specified in the organization's materials, and to read that specific code, because these differ on many points. Consistency of enforcement of the stated principles, also, is questionable; it is often dependent on the particular enforcement mechanism set up as part of the particular mediation or arbitration forum the dispute was submitted to, and may include rights that can be asserted in court, boards of professional review, other mechanisms — or, sometimes, no effective mechanism at all.
Mediators, negotiators, and the parties they represent all need to understand at least the basic problems and principles of ethics for both neutrals and advocates, in order to protect themselves and avoid situations in which they will be accused of unethical conduct.