It often happens when we face tough choices in life, and most of the time, we are stuck between the right path and the wrong one. Both paths have equally compelling reasons to choose from. However, sometimes those reasons are not enough to decide the right choice. An ethical dilemma arises when there is a ‘choice of competing values (ideas of goodness)’which suggests ‘a variety of alternative and contradictory courses of action. Lawyers every day faces the same dilemma while deciding between ethical practice which may prove to be not as much fascinating as the easy choice of manipulating the law itself and choosing a wrong path of unethical behavior. Deciding our judgments on the basis of what is ethically right can sometimes prove to be a very difficult choice and here enters the role of ethical decision making.
ADR involves more complicated legal issues than litigation matters. The most plausible reason is ADR being a newly developed field and does not have a wide area of legal practice like litigation matters. Legal practitioners while dealing with ADR disputes often face a lot of challenges while becoming habitual to a totally new and non- litigious role. This often leads to practitioners facing a tough time with various ethical issues arising out of their role from ADR. Clients face more risk in litigation matters as it involves extended cumbersome processes, more financial cost, and emotional instability for years until the matter is settled. ADR is often a quick and speedy process and is relatively a new one. Therefore, while working ethically in such a new field can often lead to loss of wealth, cases, and clients to the practitioner. These lose can prove to be very vital for especially those who have just stepped in this new field and have very little or even no experience.
Ethical values associated with ADR
ADR is growing rapidly and is now pursued by various people having different goals. There was a time when legal advisors who were associated with ADR were often considered to be having a good, moral, and ethical conscience. The reason being that one strand of ADR (the one with which I identify-“qualitative”-better processes and solutions) which has always associated itself with pursuing “the good” and the “just,” but as the time has changed the other strand of ADR(quantitative, efficiency concerned, cost-reducing, docket clearing) which has produced institutionalized forms of dispute resolution in the courts and in private contracts is taking over the former one.
Lawyers now interact with their clients while having different behavior and intentions which are inconsistent with the original idea and goals of ADR. In order to win the case, they use their tactful skills to manipulate the dispute resolution process. Take for instance negotiation strategies of arriving late to throw off the other side, “take it or leave it” offers, and creating calendar conflicts are all adversarial tactics that may keep the meter running, and usually do not serve the client’s best interests. This often leads to dilution of qualitative and good and just values associated with ADR. The most appropriate ethics which a lawyer should follow is by keeping their client’s interest over their own, by ensuring fairness and honesty in their approach and lastly, by leaving behind their tactful and adversarial bargaining strategies. The lawyer should not only behave ethically responsible towards their client but also hold respect towards the legal process as a whole. The crucial challenge which is presented in front of the ADR practitioner is to carefully create a balance between the process and outcome in such a way that doesn’t prejudice or create any loss towards the client[i].
Mediation Ethics in India
Starting with the expression “Ethics”, it is the process of deciding whether any particular action is fair or not. Although it seems quite effortless, it is confounding when it comes to applying it pragmatically. This is because of the reason that what’s right and wrong may vary from person to person depending upon their own perspective. Various other factors such as the circumstances the person is into during that time, the culture, beliefs, or mindset of the person also come into play while deciding what’s right and wrong. So, it boils down to the reasoning of what a party considers to be the right principle can be totally wrong for some other. To get through this uncertainty and vagueness, certain ground rules need to be set so that uniformity can be maintained.
Mediation can be understood as a means of conflict resolution. It is the resolution of disputes being facilitated by an unprejudiced third party i.e. a mediator where he strives to foster an unforced and a voluntary agreement by the parties who are in dispute. The keystones of mediation are primarily negotiation, communication, facilitation, and, the approaches (that have been taken to solve the disputes). Nevertheless, compliance with the highest professional ethics such as independence, honesty, and integrity are equally important.
Following are the ethical issues typically associated with mediation:
1) The responsibility of the third person who is a neutral party to the whole course of mediation to keep the whole mediation process completely confidential.
2) He shouldn’t have a conflict of interest with either of the parties.
3) Both the parties should adhere to the certain ground that would facilitate them in reaching to compromise.
Ethics plays an important role in mediation; it works as a trust factor on which both the parties to a dispute rely on. Ethics are those moral principles which should be followed by the mediator and the parties, but it is the work of the mediator to maintain or to run the mediation on ethical ground. There are certain ethics that need to be followed everywhere such as confidentiality, justice, fidelity, and others[ii].
Confidentiality makes the parties comfortable in sharing their part alone with the mediator. It also ascertains that whatever that has been disclosed would remain in the closed doors.
In India with the increasing importance of mediation Supreme Court has itself initiated to refer certain cases for mediation and has also made certain rules for the same. Arbitration and Conciliation Act 1996 of India also works in line with the UNCITRAL model, Section 75 of this Act has made certain provisions regarding confidentiality in mediation and conciliation (and most often Mediation and conciliation both are used interchangeably in India). It provides that conciliator or mediator and the parties shall keep all the matters confidential unless it is necessary to disclose the matter.
India is maintaining ethics with the help of these laws by keeping confidentiality which binds the parties to be loyal to each other. The importance of ethics can be further studied through certain case laws which shows how the Supreme Court itself is promoting mediation because of the backlog of cases by recommending disputed parties to opt for mediation. Further, Apex court has also made it secure by making Laws (Arbitration and Conciliation Act 1996, Court-connected Mediation under the Supreme Court (Civil Procedure) Rules, 2005) to secure parties’ trust in mediation[iii].
In the case of Moti Ram (D) Thr. L.Rs. and Anr. vs. Ashok Kumar and Anr[2010] 14 (ADDL.) SCR 809parties were in dispute of a property that Supreme Court directed to be settled through mediation to resolve the dispute. Subsequently, the mediator sent a report to the court which included various settlement and proposals made by the parties which were regarded as confidential. The Supreme Court took a stand on this by saying “If the mediation succeeds, by both the parties to the Court without mentioning what transpired during the mediation proceedings. If the mediation fails, then the mediator should only state the outcome in his report and give it to the court mentioning that the `Mediation has been unsuccessful’. Besides that, the mediator should not mention anything which was reviewed, suggested, or done at the time of the mediation proceedings. This is because in mediation, very often, offers, counteroffers, and proposals are made by the parties but until and unless the parties reach an agreement signed by them, it will not amount to any concluded contract. If the proceedings in the mediation proceedings are revealed, it will ruin the privacy of the mediation procedure[iv].”
In the case of Rama Aggarwal vs. PIO, Delhi State Legal Service AuthorityCIC/SA/A/2015/000305 that came up before the Central Information Commission (CIC), it held that a party cannot seek information pertaining to mediation proceedings as per the Right to Information Act, 2005 as the same attracts exceptions under provisions of the said Act. The CIC observed that:
“Information regarding the negotiation, mediation, conciliation, and counseling will fall under the exempted clause of information of another spouse, being personal and given in fiduciary capacity and, no public interest is established in disclosure, while there is the larger public interest in protecting that information like that would help mediation to flourish, hence such information shall not be disclosed.”
The overall analysis shows that the rules prescribed by the Supreme Court and the functioning of Mediation in India in conformity with the international standards. Judiciary in India has played an important role in strengthening confidentiality and loyalty in mediation. This should help mediation to grow further as a dispute resolution mechanism and to help build people’s trust over it.
Arbitration Ethics in India
All codes duly emphasize at the postulate that arbitrators should be neutral and independent. The independence and neutrality of arbitrator, although, emerges as a fundamental postulate that it unquestionably goes beyond ethics. It is strongly inculcated in the arbitration law and in the arbitration norms of the arbitral institutions all over the globe. In some arbitral institutions, such as the International Chamber of Commerce (ICC), arbitrators even required to officially sign a proclamation of independence before they can acknowledgment an appointment in the post of the arbitrator. In all circumstances, courts and arbitration institutions will eliminate arbitrators who are observed not to be neutral and independent.
Codes of Ethics specifies practices that should be adhered to in order to maintain the arbitration process. They are concerned with various facets of arbitration proceedings.
Appointment of arbitrators:
Codes of Ethics stipulates sometimes that the party may discuss with an arbitrator but in such a discussion, the benefits of dispute should not be discussed. These codes do not specify any duty on the arbitrator to reveal about the discussion to the fellow arbitrator.
An arbitrator should not give consent to his appointment when he cannot assign time and attention the parties fairly require to spend on the dispute. Before giving consent, he should specify his availability. Moreover, he should not be given consent to an appointment when he does not possess the necessary language and technical skills – or discuss this honestly with the parties or with the arbitral institution.
The beginning of the arbitral proceedings:
The arbitrators have to ensure that the parties know the arbitration procedure. They have to impress upon the parties not to contact their arbitrator but to address all questions and arguments about the proceedings to the tribunal, and duly served copies to other parties.
The supervision of the arbitral proceedings:
The arbitrator has not only an obligation towards parties but also towards the arbitration procedure and business community in general, for which arbitration is a sufficient mechanism of dispute settlement.
Compensation:
In many arbitration institutions, the arbitrator’s compensation is fixed by the institution under a fee schedule. In certain arbitration institutions, like the London Court of International Arbitration or Netherlands Arbitration Institute, the arbitrators, however, have to mention their hourly rate. In all the circumstances with so-called ‘ad hoc’ arbitrations, i.e. arbitration performed outside arbitration institutions, arbitrators have to specify their own remuneration[v].
Arbitrators should use their best endeavor to conduct fair and expedient proceedings. However, they should proceed with the mechanism in a manner that assists the parties to resolve the dispute if they wish to do so. The decision that arbitrators give, does not only have to be proper in fact and in law but has also, to meet the requirement of parties as far as possible. Actually, very frequently the law permits a range of solutions from which the arbitrator has to select the one that best resembles parties’ requirements and possibilities.
Conciliation and Ethics in India
The conciliator plays a very significant role in the resolution of Industrial disputes. The conciliator has to adopt various kinds of methods and has to perform different types of roles. The conciliator can carry out his obligations in a more effective way if he holds particular Qualifications. Thus, it becomes vital to find out the qualifications of an efficient conciliator.
When the parties to a dispute give consent to avail the services of a private conciliator, they appoint a person based on his qualifications and experience, which they understand well; they appoint him precisely due to the reason that they both believe in his competence to help them. He has, however, his own wealth of experience, his personal prestige, and last but not least the authority of his office. These make his intervention generally welcome by the parties.
Some of the ethical norms which must be adhered by the conciliator are as follows:
Understanding the Parties:
The conciliator will need to understand the causes which prevent a rational approach by the parties. In heated argumentation, they tend to be overcome by their emotions. The two sides also come to the bargaining table with their respective base of reference. Both may use similar expressions, cite similar examples for support, or advance similar statistical data, but their interpretations may bear little resemblance.
Moral Authority of the Conciliator:
A conciliator’s ability to persuade the parties in a dispute will then depend on the extent to which he has succeeded in winning their confidence in his ability to help them – in his impartiality, trustworthiness, and expertise. Expertise, as here used goes beyond merely possessing a body of information; the manner of utilizing that information is really the key to being an accomplished conciliator.
Marshalling Pressures:
A conciliator uses techniques of persuasion to achieve his object at a given moment – to induce either party to abandon a position, to induce either or both parties to take further steps towards each other, or to convince a party to accept a certain point of view, suggestion or proposal, or to agree to proposed terms of the settlement.
Conclusion
There are various benefits of selecting ADR over inconvenient and lengthy litigation processes. ADR is more adaptable in nature, contains privacy, party independence, conclusiveness in implementing awards, quick resolution procedure, etc. But these qualities are now diluted with unethical practices, recurring interruptions with judicial decisions, unfeasible expenses, and undue delays. This has resulted in reducing the development of the productive technique of the ADR procedure. One viable end result of all these obstacles can be institutional arbitration which should be encouraged and favorable to protect the ADR from becoming another corrupt litigation process. As far as, arbitrators, judges, and even civilians have knowledge of their individual ethical obligation, the ADR mechanism will prosper and keep developing to make a positive contribution in resolving disputes.
“The views of the authors are personal“
Frequently Asked Questions
What is meant by ethical values in ADR?
ADR is growing rapidly and is now pursued by various people having different goals. There was a time when legal advisors who were associated with ADR were often considered to be having a good, moral, and ethical conscience. The reason being that one strand of ADR (the one with which I identify-“qualitative”-better processes and solutions) which has always associated itself with pursuing “the good” and the “just,” but as the time has changed the other strand of ADR (quantitative, efficiency concerned, cost-reducing, docket clearing) which has produced institutionalized forms of dispute resolution in the courts and in private contracts is taking over the former one.
What are the issues regarding mediation ethics in India?
Ethics plays an important role in mediation; it works as a trust factor on which both the parties to a dispute rely on. Ethics are those moral principles which should be followed by the mediator and the parties, but it is the work of the mediator to maintain or to run the mediation on ethical ground. There are certain ethics that need to be followed everywhere such as confidentiality, justice, fidelity, and others.
Following are the ethical issues typically associated with mediation:
1) The responsibility of the third person who is a neutral party to the whole course of mediation to keep the whole mediation process completely confidential.
2) He shouldn’t have a conflict of interest with either of the parties.
3) Both the parties should adhere to the certain ground that would facilitate them in reaching to compromise.
What are the ethics that an arbitrator must adhere to?
(a) Appointment of arbitrators: Codes of Ethics stipulates sometimes that the party may discuss with an arbitrator but in such a discussion, the benefits of dispute should not be discussed. These codes do not specify any duty on the arbitrator to reveal about the discussion to the fellow arbitrator.
An arbitrator should not give consent to his appointment when he cannot assign time and attention the parties fairly require to spend on the dispute. Before giving consent, he should specify his availability. Moreover, he should not give consent to an appointment when he does not possess the necessary language and technical skills – or discuss this honestly with the parties or with the arbitral institutions.
(b)The beginning of the arbitral proceedings: The arbitrators have to ensure that the parties know the arbitration procedure. They have to impress upon the parties not to contact their arbitrator but to address all questions and arguments about the proceedings to the tribunal, and duly served copies to other parties.
(c)The supervision of the arbitral proceedings: The arbitrator has not only an obligation towards parties but also towards the arbitration procedure and business community in general, for which arbitration is a sufficient mechanism of dispute settlement.
(d)Compensation: In many arbitration institutions, the arbitrator’s compensation is fixed by the institution under a fee schedule. In certain arbitration institutions, like the London Court of International Arbitration or Netherlands Arbitration Institute, the arbitrators, however, have to mention their hourly rate. In all the circumstances with so-called ‘ad hoc’ arbitrations, i.e. arbitration performed outside arbitration institutions, arbitrators have to specify their own remuneration.
Arbitrators should use their best endeavor to conduct fair and expedient proceedings. However, they should proceed with the mechanism in a manner that assists the parties to resolve the dispute if they wish to do so. The decision that arbitrators give, does not only have to be proper in fact and in law but has also, to meet the requirement of parties as far as possible. Actually, very frequently the law permits a range of solutions from which the arbitrator has to select the one that best resembles to parties’ requirements and possibilities.
Reference
[i] Deeksha Dubey, Role of Professional Ethics in Alternate Dispute Resolution, available at http://jcil.lsyndicate.com/wp-content/uploads/2018/05/ROLE-OF-PROFESSIONAL-ETHICS-IN-ALTERNATIVE-DISPUTE-RESOLUTION-Deeksha-Dubey-5.pdf, last accessed at 6/05/2020 at 3:00pm
[ii] Akarsh Kumar and Ashutosh Pareek, Mediation ethics in India, available at https://imwpost.com/mediation-ethics-in-india/, last accessed at 6/05/2020 at 4:40pm.
[iii] Ibid
[iv] Ibid
[v] Code of Ethics for Arbitrators in Commercial Disputes, available at https://www.cpradr.org/resource-center/protocols-guidelines/ethics-codes/code-of-ethics-for-arbitrators-in-commercial-disputes, last accessed at 6/5/2020 at 5:00 pm.
