When we are stuck in a difficult situation and we face tough choices in life, it often happens that we have to choose between a right path and a wrong path. It usually seems that both paths have a compelling reason to choose from and these reasons are not always enough to decide the right choice. An ethical dilemma arises when there are ideas of goodness which gives an alternate and a different course of action. ADR is a newly developed field and thus it faces more complicated legal choices.
While laying down the codes, quality
and fairness of the branch should be maintained so that not only justice has
prevailed fairly but also the behavior of legal practitioners is regulated.
There are also some amendments required in the statutes so as to ensure that arbitrators
delivering the awards are behaving in a fair, independent and impartial way.
Any misconduct or ill practices on behalf of practitioners should also be
brought under the ambit of such an amendment.
One example of such a code of conduct is a framework operating in Delhi by CIAC
(Construction Industry Arbitration Council) or ICA[1].
There is a specific set of rules under CIAC which requires arbitrators to
adhere to strict code of conduct for the arbitrator, parties & the
counsel/parties’ representative to ensure a smooth and environment-friendly
atmosphere for the conduct of an arbitration.[2]
Legal practitioners face a lot of
challenges when dealing with ADR disputes as they are not used to a totally new
role and a not litigious role like this. This often raises a lot of ethical
issues when dealing with ADR. Issues can be created in two ways:
1. Issues for representatives in ADR (negotiation, mediation,
arbitration etc.) are lying and misrepresentation, advising the client,
confidentiality and disclosure, posturing and pressuring clients, acting as an
agent for settlement.
2. Issues for facilitators in ADR (mediators, arbitrators, etc.)
neutrality and impartiality, duty of care, confidentiality and disclosure,
conflicts of interests and prior relationships with parties, fairness of
process and of the agreement.
Formal rules offer more advice to
practicing lawyers than ADR practitioners and this is due to the difficulty in
developing a single, uniform standard of conduct. The National Alternative
Dispute Resolution Advisory Council (NADRAC) guidelines represent practice
standards that are not legally binding upon practitioners as they are more
targeted at arbitrators and facilitators than representing themselves. Some
pertinent extracts are:
1. Eliciting
information[3]: The ADR
practitioner may consider issues such as whether an ADR practitioner can
contradict a party or whether there is any scope for discrediting a party
before their colleagues
in order to verify the relevant facts or what kind of information can be raised
in private sessions or whether recommendations or decisions may be restricted
to agreed issues in dispute/maybe open to other issues as well.
2. Managing continuing or termination
of the process:
Terminating an ADR process is a responsibility which the practitioner has and
while doing it, he has to consider whether to dispirit the parties from
abandoning the process when the practitioner believes settlement is possible or
abandon the process in order to induce an agreement or try to restrict the
number of scope of settlement options by reference to similar case experience,
expert intellectual knowledge or legal principles.
3. Exhibiting lack of biasness: If a practitioner needs to
approach the subject matter of the dispute, he should be open minded and
without any misconceptions and this is only possible when ADR practitioners
demonstrate independence and lack of personal interest in the outcome of the
ideas.
4. Maintaining confidentiality: ADR processes like mediation are
considered to be essentially private. It is important that the parties and the
practitioner have a clear and common understanding of the extent and the limits
of confidentiality. An ADR practitioner can not disclose any information about
one party provided during an ADR session
to any other party, subject to any common law, contractual or statutory
requirements.
5. Maintaining impartiality: Impartiality is a matter of
behaviour and neutrality and is more of
a question of interest. It depends on holding on to the confidence of the
parties which is built upon their perception that they are treated fairly by
the practitioner. In order to be impartial, an ADR practitioner needs to
conduct the process in a fair way without treating the parties biasedly. They
should not accept any advances or gifts from the parties and should ensure that
the parties do not communicate with more than required warmth, friendliness and
acceptance.
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