The requirement for good faith in dispute resolution processes has
received much judicial attention. Discuss this and any additional ethical
responsibilities for lawyers participating either as representatives or
mediator/facilitators in ADR.
Alternative Dispute Resolution or ADR is usually an umbrella term for processes, other than
judicial determination, in which an impartial person (an ADR practitioner) assists those in a
dispute to resolve the issues between them. ADR is commonly used as an abbreviation for
alternative dispute resolution, but can also mean
resolution. The main types of ADR are mediation, arbitration and conciliation. ADR
processes may be
facilitative, advisory, determinative
in some cases, a combination of
The ADR practitioner in a facilitative process, such as mediation, uses a variety of
methods to assist parties to identify the issues and reach an agreement about the dispute.
Advisory processes, such as conciliation or expert appraisal, employ a practitioner to more
actively advise the parties about the issues and range of possible outcomes. A process can be
selected to best suit a particular dispute.
The basis of all ADR processes is the requirement for good faith between parties and
mediators, in the hopes of reaching a mutually satisfactory agreement. This essay will analyse
in depth this and any additional ethical responsibilities for lawyers participating either as
representatives or mediator/facilitators in Alternative Dispute Resolution.
That persons should behave in good faith is a minimal standard rather than a high ideal; yet,
judging from the facts of litigated cases, contractual bad faith, in its many and varied forms,
is a continuing problem. (Reference 1)
Written some 45 years previously the requirement for good faith remains an ongoing issue
that has generated significant controversey particularly in Australia where this issue has yet to
be resolved by the courts who have presented contradictory views. In England the matter of
good faith in negotiations was settled in the dispute
Walford v.Miles 2 AC 128
Lord Ackner delivered his judgement “How can a court be expected to decide whether,
subjectively [sic], a proper reason existed for the termination of negotiations? The answer
suggested depends upon whether the negotiations have been determined ‘in good faith’.
However, the concept of a duty to carry on negotiations in good faith is inherently repugnant
to the adversarial position of the parties when involved in negotiations. Each party to the
negotiations is entitled to pursue his (or her) own interest, so long as he avoids making
misrepresentations. To advance that interest he must be entitled, if he thinks appropriate, to
threaten to withdraw from further negotiations or to withdraw in fact in the hope that the
opposite party may seek to reopen the negotiations by offering him improved terms.”
Thereby firmly rejecting the idea of good faith during negotiations in England. In Australia