Cornell University

Scheinman Institute on Conflict Resolution

456 ILR Research Building, 607-255-9298

Ethics in Alternative Dispute Resolution DR170

Not currently offered

This program currently has no scheduled dates.

ADR is no longer a risk-free environment for mediators and other neutrals. As codes of conduct and grievance processes proliferate, and second-guessing and litigation increase, neutrals must be better aware of ethical dilemmas they will face. This course employs presentations, exercises, and moderated discussions of real-world cases to improve ADR neutrals’ ethical awareness and their competency to deal with sticky ethical situations in real time.

Overview

  • Potentially relevant professional standards and other authorities
  • Steps in identifying and effectuating evenhanded, defensible responses to tough cases that minimize harm to the parties, to the process, and to the role of the neutral
  • Understanding the critical role of context and party expectations: How variations in ADR settings have an impact on neutrals' conduct
  • How outcomes may vary under potentially relevant legislation, rules, and other authorities

Neutrals' Roles and Conduct

  • Neutrality, conflicts, and competence
  • Evaluation by mediators
  • Separating mediation from counseling and legal advice
  • Preventing abuse of ADR processes
  • Impact on third parties of agreements negotiated in ADR

Self-determination: When does encouragement become coercion?

  • What do we mean by party self-determination?
  • Given differences among cases and clients, how do we know when neutrals’ interventions and strategies cross the line of coercing clients to reach agreements?

Confidentiality

  • What do we mean by "confidential" as regards parties and neutrals?
  • What exceptions exist? What information may (or must) a neutral divulge to judges or others?
  • Explaining confidentiality clearly and establishing realistic party expectations
  • Handling demands or requests for confidential information

Putting it all together: Ethics in day-to-day practice

  • Best ethical practices for neutrals and program administrators
  • Using available tools (disclosure, questioning) to shape expectations and handle or avoid problems
  • Neutrals' liability for ethical lapses
  • Grievance mechanisms, advisory processes, and other measures taken by various jurisdictions to promote ethical behavior
  • ADR program ethics: Administrators' roles and responsibilities
  • Recent developments (Revised Joint Standards of Conduct for Mediators; ACR Ethics Training Resources initiative; ABA guidance on confidentiality)