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05_Ethics_alternative - Dispute Resolution and Legal Ethics...

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Dispute Resolution and Legal Ethics 05 – Ethics (ADR) Page 1 of 19 P ART V E THICS IN A LTERNATIVE D ISPUTE R ESOLUTION 1 I NTRODUCTION 1.1 Common Ethical Issues Ethical issues arising in alternative dispute resolution (‘ADR’) processes are less capable of clear articulation than those arising in a litigious context. There are several reasons for this: primarily, they are newer and less developed areas of legal practice; secondarily, the issues confronting ADR specialists are extremely broad. A practitioner will face different ethical issues depending on their role in dispute resolution. Legal advisors are faced with the challenge of adjusting to a new, non-litigious role. As such, the ‘fight or settle’ decision is frequently an issue. Litigation poses risks for the client (and is a financially and emotionally costly, extended process), but stands to make the lawyer (in many circumstances) more money than successful ADR. On the other hand, settlement is quick and produces finality (but is less profitable). How should lawyers go about assessing the merits of ADR and advising clients on the relative suitability of ADR and litigation? Another issue concerns authority to settle: is any agreement reached by the lawyer when acting as agent for a client binding upon that client? What if the lawyer exceeds the client’s instructions? Ethical issues can arise in two ways for practitioners: As representatives of parties in ADR (eg, negotiation, mediation, arbitration, etc) As facilitators or practitioners of ADR (eg, mediators, arbitrators, etc) Issues for representatives: Lying and misrepresentation Posturing and pressuring tactics Advising the client Acting as agent for settlement Confidentiality and disclosure Issues for facilitators: Conflicts of interest and prior relationships with parties Neutrality and impartiality Fairness of process and of the agreement Duty of care Confidentiality and disclosure 1.2 Professional Conduct Requirements Formal rules don’t offer nearly as much advice to ADR practitioners as practicing lawyers. In part, this is due to the difficulty of developing universal standards for ADR: at present, there is no single, uniform standard of conduct.
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Dispute Resolution and Legal Ethics 05 – Ethics (ADR) Page 2 of 19 1 ADR Guidelines The National Alternative Dispute Resolution Advisory Council (‘NADRAC’) guidelines represent ‘best practice’ standards, but aren’t legally binding upon practitioners. They are more targeted at arbitrators and facilitators than representatives themselves (though they could be adjusted for that context). The NADRAC standards are a good starting point for ADR facilitators (and can be adapted for representatives). See further http://www.nadrac.gov.au/adr/HTML/knowledge.html . Pertinent extracts: 20. Promoting services accurately [deals with advertising, service disclosure and avoiding the appearance of impropriety] 21. Ensuring effective participation by parties The practitioner may need to ensure that the parties are given the opportunity to have their say.
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