ZAMBIAN OPEN UNIVERSITY

PROGRAM: BACHELOR OF LAWS [LLB]

COURSE: ALTERNATIVE DISPUTE RESOLUTIONS
COURSE CODE: LL327
COMPUTER NO: 21910631
YEAR: THIRD YEAR
LECTURER: MS CLOEPATRA
DUE DATE: 17TH SEPTEMBER 2021
ASSIGNMENT NO: 1 (ONE)
PHONE NUMBER: 0964949528
ADDRESS: C/o SIDNEY PHIRI BOX 37107 LUSAKA

QUESTION: DISCUSS THE ETHICAL ISSUES THAT WOULD ARISE WHEN

THE OUTCOME OF A DISPUTE RESOLUTION PROCESS POTENTIALLY
IMPACT ON VULNERABLE THIRD PARTIES WHO DO NOT PARTICIPATE
IN THE PROCESS.
INTRODUCTION

This assignment discusses the ethical issues that would arise when the outcome of a dispute
resolution process potentially impact on vulnerable third parties who do not participate in the
process. Alternative dispute resolution is likened to an underground court and what goes on there
must not be made public knowledge. If the outcome of a decision made through alternative
dispute resolution affects parties who do not participate in the process, ethical issues that would
arise are confidentiality as information that is supposed to be private is made public. Another
ethical issue is impartiality. Partiality will be present as those who did not participate in the
process are affected and were not given the opportunity to participate in the dispute resolution
process. This assignment will also briefly discuss some well-known dispute resolution processes.

Alternative dispute resolution is defined as a range of techniques used to resolve civil disputes
minus the need for conventional litigation. It may include a mini-trial, informal methods of
arbitration, and organized forms of conciliation using a trained mediator acting as a go-between.
Alternative dispute resolution includes well known processes such as arbitration, mediation, and
conciliation among others.

ARBITRATION

Arbitration is an alternative to resolving disputes in court. The arbitration process allows the
parties to select one or more persons with knowledge on the subject matter of the dispute to take
note of the evidence and render a binding decision. Arbitration is t the process by which parties
to a dispute agree to submit their dispute to a third party known as an arbitrator, and give the
arbitrator the authority to review the evidence and render a decision . Arbitration is a long-
established procedure in which parties submit their dispute by agreement, to one or more
impartial and independent arbitrators who make a binding and enforceable decision on the
dispute.

MEDIATION

The mediation process consists of the neutral and independent third party meeting with the
parties who have the necessary authority to settle the dispute. The mediator begins the process by
explaining the process to the parties, evaluating the suitability of mediation to the situation and
ensuring that the parties are prepared and able to participate. This is known as a joint session.
The neutral and independent third party then meets with each party privately to discuss their
respective positions and their own underlying needs and interests. These private meetings are
known as caucus. Information which is provided by the party to the third party during a caucus is
strictly confidential, unless a party expressly consents to the third party informing the other party
of such information. A form of alternative dispute resolution in which an independent third party
the mediator assists the parties involved in a dispute or negotiation to achieve a mutually
acceptable resolution of the points of conflict. The mediator, who may be a lawyer or a specially
trained non lawyer, has no decision making powers and cannot force the parties to accept a
settlement. In family law, for example, mediators assist spouses to resolve disputes that have
arisen as a consequence of the breakdown of their marriage by reaching agreement or reducing
conflict over future arrangements for children or their finances. Mediation, which is designed to
avoid the need to take cases to court.1

CONCILIATION

A procedure of peaceful settlement of international disputes. The matter of dispute is referred to

a standing or ad hoc commission of conciliation, appointed with the parties' agreement, whose
function is to explain the facts accurately and impartially and then to produce a report. The report
is expected to contain solid proposals for a settlement, however, the parties are under no legal
duty to accept it. The term conciliation is occasionally used interchangeably with mediation,
however it is meant to refer to a less formal process. A neutral third party, called a conciliator is
brought into the negotiation process. The conciliator assists parties to settle their difference by
executing the role of a go between and communicating each side.

Acting as an impartial practitioner in a dispute resolution process comes with a significant ethical
duty to act in a responsible, competent and effective way with Principle and integrity. It would
be easy for practitioners to influence the course of Proceedings by the way in which they conduct
the process, the questions they ask and the choices they help the parties to examine. However,
they must not, directly or indirectly, try to enforce their own personal views or settlement terms
on the parties. Abusing this ethical rule could be harmful and could bring the practitioner`s
character and the process into dishonor. Practitioners need to observe the agreements about
confidentiality and legal privilege, and need to observe high ethical principles in the way that

1
Oxford dictionary of law
they carry out the process and themselves. Ethics constitute one of the foundations of alternative
dispute resolution. ·A practitioner is given considerable power to influence the resolution of
disputes, in many cases affecting the lives of the people involved. Dispute resolution processes
are mostly carried out privately away from the public and also away from the protection the
courts provides in respect of one obtaining a reasoned judgment and the possibility of an appeal.
Practitioners must observe a strong sense of ethical awareness.

The ethical issues

If information generally not accessible to the public is communicated to another person in

confidence on the explicit or implied basis that it must not be disclosed to anyone else or used for
an unauthorized purpose is a breach of confidence and can lead to a law suit. The plaintiff must
prove that the communicated information was confidential, that the circumstances under which
the information was communicated imposed a duty on the defendant to maintain confidentiality,
that the information disclosed was used in a way which was not intended and without authority
and for a private individual to succeed in his law suit, he must prove that he suffered some actual
or potential damage.The proceedings in alternative dispute resolutions are confidential and the
parties commit themselves to refrain from disclosing details of the proceedings to any outsider.
When the outcome of a process affects third parties who did not participate in the dispute
resolution process, it may be as a result of breach of confidentiality. Confidential information has
been made public. An ethical issue may arise where a practitioner is bound by an agreement to
maintain Confidentiality in proceedings and comes across a situation in which he or she feels
Morally or ethically obliged to breach that duty of confidentiality. Whether or not there is a legal
obligation to maintain confidentiality will depend upon the conditions under which the process
takes place, and on the applicable law in the jurisdiction governing the process. Section 27
arbitration act outlines that where there has been an agreement to maintain confidentiality,
parties shall not publish, disclose or communicate any information relating to the proceedings.
Confidentiality appears to be the key to the success of alternative dispute resolutions because it
helps guarantee the openness of the parties and the genuineness of the communications
exchanged in the course of the procedure. The primary reason for protecting confidentiality is to
boost trust both in the neutral third party and in the dispute resolution process itself. The
essential principle has always been viewed as being that a mediation should be a safe place,
where the parties profit from the discretion it provides. Confidentiality works in two stages. First
the process should be confidential between the participants, preventing third any third parties
from having any information concerning the dispute. Secondly, matters discussed between one
party and the neutral third party in private sessions should be confidential between them and may
not be disclosed to any other party without express consent.

Another ethical issue that would arise is breach of impartiality as third parties who did not
participate in the process are affected by the outcome. Impartiality is said to refer to an even-
handedness, impartiality and fairness towards the parties during the process. As briefly
mentioned, an important requirement on mediators, and the process, is that it is completely
impartial. It would be immoral for mediators to favor one side but it is recognized that in reality
true or complete neutrality is elusive to obtain. Mediators must be even handed and impartial
with their dealings with the parties. If a mediator adopts any partiality towards any party that
would not be fair. Mediators should create conditions in which both or all parties can be properly
heard. If one party dominates the process that would ordinarily create a sense of unfairness.

CONCLUSION

Alternative dispute resolution is likened to an underground court and what goes on there must
not be made public knowledge. One of the things that form a strong foundation for alternative
dispute resolution is the observation of the confidentiality rule, therefore information about
disputes must not be disclosed or communicated to third parties who did not take part in the
process. If the outcome of a decision made through alternative dispute resolution affects parties
who do not participate in the process, ethical issues that would arise are confidentiality as
information that is supposed to be private is made public. Another ethical issue is impartiality.
Partiality will be present as those who did not participate in the process are affected and were not
given the opportunity to participate in the dispute resolution process.
BIBLIOGRAPHY

Fiadjoe, A. (2004). Alternative Dispute Resolution: A Developing world Perspective: London.

Cavendish publishing limited

Martin, E.A. (2002). Oxford Dictionary of Law (5th Ed). Oxford: Oxford University Press.

STATUTES USED

The Arbitration Act Chapter 40 of the laws of Zambia.