Good faith esssay - 1. The requirement for good faith in...

Info iconThis preview shows pages 1–2. Sign up to view the full content.

View Full Document Right Arrow Icon
1. 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. Introduction 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 assisted or appropriate dispute resolution. The main types of ADR are mediation, arbitration and conciliation. ADR processes may be facilitative, advisory, determinative or , in some cases, a combination of these . 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. ( http://www.nadrac.gov.au/www/nadrac/nadrac.nsf/Page/What_is_ADR ) 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[1992] 2 AC 128 where 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
Background image of page 1

Info iconThis preview has intentionally blurred sections. Sign up to view the full version.

View Full DocumentRight Arrow Icon
Image of page 2
This is the end of the preview. Sign up to access the rest of the document.

Page1 / 5

Good faith esssay - 1. The requirement for good faith in...

This preview shows document pages 1 - 2. Sign up to view the full document.

View Full Document Right Arrow Icon
Ask a homework question - tutors are online