Ethics in Alternative Dispute Resolution
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.
- 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?
- 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)