ZAMBIAN OPEN UNIVERSITY

SCHOOL OF LAW

NAME: Mwangosi William

PROGRAMME: Bachelors of Laws (LLB)

COMPUTER ID: 21910671

COURSE: Alternative Dispute Resolution

ASSIGNMENT NO: 1

SEMESTER NO: 1

COURSE CODE: LL332

LECTURER: Mrs Sitali, C. H

DUE DATE: 17th September 2021

Question: Discuss the ethical issues that would arise when the outcome of a dispute
resolution process potentially impacts on vulnerable third parties who do not participate in
the process?
INTRODUCTION

A sound and just court system is undoubtedly a primary choice for dispute resolution. Clear
and fair procedural rules should ensure that parties are able to put their case properly.
Balanced and transparent rules for evidence should ensure that relevant information is
admissible, relevant and that irrelevant or prejudicial information is excluded. That said, no
system, according to Blake et al, can be perfect and there are various ways a good and there
are various ways in which a good court system may nonetheless fail to meet the needs of
individual litigants. The strengths of a court system can include potential weaknesses. Rules
for civil procedure may need to be complex to be fair, but this complexity may of itself
extend the time and expense needed to resolve the dispute. Lord Denning once said “it is
undesirable and unhealthy to always resort to litigation in the courts when matters can easily
be settled amicably in the alternative. This simply means that it is not always when a person
should resort to using litigation as a mode of resolving disputes. There are alternatives that
people can use, these are referred to as Alternative Dispute Resolutions. In most of the
dispute resolving mechanisms, a neutral, third party, is usually called in order to help assess
and resolve the dispute. Acting as an impartial practitioner in a dispute resolution process
carries with it a substantial ethical obligation to act in a responsible, competent and effective
way ·with principle and integrity. One may ask, what ethical standards should apply to
lawyers when they are involved in negotiation and ADR, rather than litigating, on behalf of
clients? Henceforth, this assignment aims at explaining, while presenting justifiable authority,
on the ethical issues that third parties encounter in the process of dispute resolution.

WHAT IS ALTERNATVE DISPUTE RESOLUTION?

Generally, alternative dispute resolution are the mechanisms used by people to resolve
disputes without referring the matters to court (litigation). Regardless of this, it is not as an
alternative to litigation but one technique which is appropriate in the context of dispute
resolution generally. Following that way of thinking, litigation is considered as just one of a
variety of methods of dispute resolution1. ADR, according to Blake et al is taken to cover
alternatives to litigation where there is a dispute between two or more people, where such
dispute relates to civil legal right and (or) duties; where the process is confidential; where the
process involves individuals other than the parties in dispute who add some degree of

1
Fiadjoe, A.K. (2004), Alternative Dispute Resolution: A Developing World Perspective, London: Cavendish
Publishing Limited, p.2

2
objectivity, be it lawyers, or an independent and normally neutral third party 2. In ADR
processes, there is no single appropriate terminology for the participants. For instance, if a
dispute is settled before the issue of proceedings, there will never be a claimant or defendant.
In most cases, the participants are mostly referred to as parties in disputes. Abraham Lincoln,
an early advocate of ADR, stated:

Discourage litigation. Persuade your neighbours to compromise whenever you can.

Point out to them how the nominal winner is often the loser in fees, expenses and cost
of time3.’

Pertaining to this, Mahatma Ghandi stated:

I realized that the true function of a lawyer was to unite parties ... A large part of my time
during the 20 years of my practice as a lawyer was occupied in bringing about private
compromises of hundreds of cases. I lost nothing thereby – not even money, certainly not my
soul.

ADR involves formal processes (like arbitration), or informal processes (like negotiation)
with third usually being neutrals to the third parties. Examples of ADR processes are;
Arbitration, Mediation, Negotiation and Reconciliation.

ETHICAL ISSUES IN ALTERNATIVE DISPUTE RESOLUTION

Just like any other practice, practitioners in Alternative Dispute resolution processes need to
follow certain ethics in order to come with a proper and decision. Ethics, in the practice of
ADR, constitute one of the most important cornerstones. A third party, who can be a legal
practitioner or other person, is given substantial power to influence the resolution of disputes,
in many cases affecting the lives of the people concerned. ADR practice is largely carried out
privately away from the public gaze provided by the traditional court system, and also away
from the protection the latter provides in respect of one obtaining a reasoned judgment and
the possibility of an appeal. Practitioners therefore owe it to the public and to their profession
to observe a strong sense of ethical awareness.

There are a number of issues that practitioners face in ADR. These are:

Confidentiality
2
Blake, S., Browne, J. & Sime, S. (2014), A Practical Approach to Alternative Dispute Resolution (4 th Edition),
London: Oxford University Press, p.6
3
Fiadjoe, A.K. (2004), Alternative Dispute Resolution: A Developing World Perspective, London: Cavendish
Publishing Limited, p.3

3
Most codes regulating neutrals' professional conduct impose some type of obligation to
maintain party communications and hearing records in confidence. "Confidential
information" generally is perceived as that information reasonably expected not to be
disclosed and which is transmitted in the course of dispute settlement to a person to whom
disclosure is reasonably necessary for the accomplishment of the purposes of settlement
proceedings. Generally, confidentiality means that any information you give as part of an
ADR process must not be disclosed by anyone who was at the ADR conference. It also
means that you must not disclose any information given to you during the ADR conference
process. Confidentiality operates on two levels. First the process should be confidential as
between the participants, preventing third party knowledge of the dispute of any attempt to
settle it, and also in terms of all matters disclosed in the process. Henceforth, this simply
means that when parties disclose certain facts to the third party, the latter must not disclose
such information to the public. Furthermore, 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 consent4. At the debates of the Civil Liability
and Courts Act of 2004, it was stated that it is important that the confidentiality of all parties
is respected, otherwise people will just be defensive and will stand their ground 5. The
disclosure of facts and documents to the other side, and making admissions, could mean that
confidentiality in any such admissions, statements and documents would be lost, and that the
other side could use them in any subsequent litigation. However, an ethical issue may arise
where a practitioner is bound by an agreement to maintain confidentiality in ADR
proceedings and comes across a situation in which he or she feels morally or ethically obliged
to breach that duty of confidentiality. This, usually arises where parties in a mediation inform
a mediator in confidence that a public structure r product being marketed is unsafe or a
couple tell he mediator confidentially that a child is being subjected to physical or sexual
abuse. Prohibitions on the disclosure of party communications and records are not confined to
the labour arena. For example, commercial arbitrators are required to keep confidential
communications and records relating to the arbitration proceedings and decision except in
those instances where parties have agreed otherwise or when disclosure is required by law6.

The legal obligation to maintain confidentiality, will, in most cases, depend on the conditions
under which the process takes place, and on the applicable law in the jurisdiction governing

4
Law Reform Commission (2008), Alternative Dispute Resolution, Dublin: Law Reform Commission.
5
Seanad Debate Vol 175 No 21 (11th March 2004).
6
Holtzman, H. M. (1977), The First Code of Ethics for Arbitrators in Commercial Disputes,

4
the process. If there is no legal duty of confidentiality of if the· circumstances of the matter
and a legal duty of disclosure override the obligation to maintain confidentiality the mediator
will be able to consider the ethical position without legal constraints.

Furthermore, there are cases where an individual is not satisfied with the decision of the third
party, they can go to court. Once this is done the aspect of confidentiality is ripped off.

Fairness and Neutrality

Another ethical issue that arises is the aspect of fairness and neutrality. practitioner
establishes a close relationship and engages with a high level of empathy with dispute
participants7. Practitioners must ensure that there is the aspect of fairness and neutrality.
Fairness in ADR simply indicates fairness in the process and fairness in outcome. Someone
might ask, what then constitutes fairness. Fairness simply implies that the process must be
voluntary and parties must not feel coerced into arriving at a settlement.

Neutrality in the broadest sense of the term includes issues such as a lack of interest in the
outcome of the dispute, a lack of bias towards one of the parties, a lack of prior knowledge of
the dispute and/or the parties, the absence of the mediator making a judgment about the
parties and their dispute, and the idea that the mediator will be fair and even-handed. The
National Alternative Dispute Resolution Advisory Council (NADRAC) suggests in its
framework standards for ADR practitioners that practioners should be free of any association
with either party, or their case, that could mean they have an interest in the way the dispute is
resolved.Practitioners must not have personal interests in the cases that they adjudicate 8. If
they do so, the decision they make cannot be considered to be genuine. It is a rule under
natural justice that a person should not be the judge in there on cause (nemo judex in causa
sua). the objective is different the purpose is to ensure that the mediator is free of any interest
that could impact on being completely neutral towards either party’s case (like a judge) 9,
whereas for conventional lawyering the objective is that they should be free of any interests
except the need to zealously represent their own client. Impartiality is said to refer to an even-
handedness, objectivity and fairness towards the parties during the process. The law reform
commission has stated that implementing a neutral position, helps mediators to gain respect

7
Sourdin, T. (2016), Alternative Dispute Resolution (5 th Edition), Sydney: Thomas Reuters, p.252
8
Section 6 of the Judcial Code of Conduct Act
9
Section 3 of the Judicial Code of Conduct Act

5
and trust credibility. if a practitioner cannot to maintain such, standards of practice and codes
of ethics require that such personnel withdraw from the case10.

If any party to the mediation is unduly influenced in decision-making, the mediator

need to take steps to address this and ensure as far as practicable that parties negotiate and
decide freely, if there is any harassment, abuse or violence, the mediator must take steps to
deal with that to ensure that negotiations are voluntary and not induced by fear or made under
duress. If that is not possible, the mediation would have to be ended

10
Law Reform Commission (2008), Alternative Dispute Resolution, Dublin: Law Reform Commission.

6
CONCLUSION

All in all, alternative dispute resolution are the mechanisms used by people to resolve
disputes without referring the matters to litigation. In most cases, ADR is processed by help
of a third party. In order to perform the functions properly, there are ethical issues that arise,
of which need to be followed. Among them is the aspect of confidentiality, which entails that
third parties must not disclose information they receive from the ADR to other platforms,
even though there is an exception to this regarding things invading public law. Not only that
but when an individual is not satisfied with the decision of the third party, a party can appeal
to the high court. Another aspect is that of Fairness, impartiality and neutrality. A third party
is someone who has to gain the trust of the parties in dispute. In doing so, the third party must
be neutral. This simply means that the third party must no be one sided or must not have any
potential interest in the outcome of the process, as such would render the decision null.

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BIBILIOGRAPHY

Books

Blake, S., Browne, J. & Sime, S. (2014), A Practical Approach to Alternative Dispute
Resolution (4th Edition), London: Oxford University Press

Fiadjoe, A.K. (2004), Alternative Dispute Resolution: A Developing World Perspective,

London: Cavendish Publishing Limited

Law Reform Commission (2008), Alternative Dispute Resolution, Dublin: Law Reform
Comission.

Sourdin, T. (2016), Alternative Dispute Resolution (5th Edition), Sydney: Thomas Reuters,

Statues

The Judicial Code of Conduct Act