DHARMASHASTRA NATIONAL LAW UNIVERSITY,

JABALPUR
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BATCH: 2018-2023

ALTERNATIVE DISPUTE RESOLUTION

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ETHICS IN THE ALTERNATIVE DISPUTE RESOLUTION
METHODS
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DATE OF SUBMISSION: 11/12/2021

Submitted by: Submitted to:

Sahaj Choudhary Ms. Shruti Nandwana
BAL/086/18 (Assistant Professor of Law)
 ACKNOWLEDGEMENT

It is not possible to prepare a project without the assistance & encouragement of other people.
This is certainly no exception.

On the very outset of this report, I would like to extend my sincere & heartfelt obligation towards
all the personages who have helped me in this endeavor. Without their active guidance, help,
cooperation & encouragement, I would not have made headway in the project.

I am extremely thankful and pay my gratitude to my faculty Mr. Anirban Chakraborty (Guest
Faculty) and Ms. Shruti Nandwanan for their valuable guidance. It is due to his patient guidance
that I have been able to complete my task.

I extend my gratitude to Dharmashastra National Law University for giving me this opportunity.
I also acknowledge with a deep sense of reverence, my gratitude towards my parents, who have
always supported me morally as well as economically.

At last, but not least gratitude goes to all my friends who directly or indirectly helped me to
complete the project.

Thanking you

Sahaj Choudhary

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Table of Contents

ACKNOWLEDGEMENT......................................................................................2

INTRODUCTION...................................................................................................4

Research Question...................................................................................................5

Research Objectives................................................................................................5

Research Methodology............................................................................................5

Mode of Citation......................................................................................................5

Hypothesis................................................................................................................5

VALUES ASSOCIATED WITH ALTERNATIVE DISPUTE RESOLUTION

...................................................................................................................................6

ETHICS RELATED TO MEDIATION................................................................7

ETHICS RELATED TO ARBITRATION...........................................................8

1. Related to Appointment of Arbitrator..............................................................9

2. At the beginning of the Proceedings:...............................................................9

3. Related to Compensation.................................................................................9

CONCLUSION......................................................................................................11

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 INTRODUCTION

Whenever we face a difficult situation in life, we are often stuck between the right way and the
wrong one. Because both ways have an equally compelling reason to choose between. However,
many a time those reasons are not enough to decide the right choice. An ethical dilemma arises
when there is a choice of competing values that suggests us a variety of alternatives and
contradictory courses to deal with the situation. Lawyers on a routine basis face the same
dilemma while deciding between ethical practice which may prove to be not as much fascinating
as the easy choice of manipulating the law itself and choosing a wrong path of unethical
behavior. Deciding our judgments based on what is ethically right can sometimes prove to be a
very difficult choice and here enters the role of ethical decision making.
Alternative Dispute Resolution Process involves complex legal issues than litigation matters.

The most plausible reason is Alternative Dispute Resolution Process is a newly developed field
and does not have a wide area of legal practice like litigation matters. Legal practitioners while
dealing with Alternative Dispute Resolution disputes often come across a lot of challenges while
becoming habitual to a totally new and non-litigious role. This often leads to practitioners facing
a tough time with various ethical issues arising out of their role from Alternative Dispute
Resolution. Clients face more risk in litigation matters as it involves extended cumbersome
processes, more financial cost, and emotional instability for years until the matter is settled.
Alternative dispute resolution is often a quick and speedy process and is the relatively new one,
therefore, while working ethically in such a new field can often lead to loss of wealth, cases, and
clients to the practitioner, these losses can prove to be very vital for especially those who have
just stepped into this new field and have very little or even no experience.1

1
Nikhil Verma, Ethics in ALTERNATIVE DISPUTE RESOLUTION in Context of Mediation, Arbitration and
Conciliation, Law Times Journal, Accessible at: https://lawtimesjournal.in/ethics-in-Alternative Dispute Resolution-
in-context-of-mediation-arbitration-and-conciliation/ (Last access: Dec 7, 2021).

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 Research Question

1. What is meant by ethical values in ADR?

2. What are the issues regarding mediation ethics in India?
3. What are the ethics that an arbitrator must adhere to?

Research Objectives

1. To understand and analyze scope of ethical values covered through legislation, i.e., Arbitration
and Conciliation Act.
2. To understand the scope of values required to create a healthy ADR environment.

Research Methodology

The researcher has relied upon the secondary sources like books, articles, journals, case laws and
web sources.

Mode of Citation

The researcher has adopted Bluebook 20th edition as mode of citation throughout the research
project.

Hypothesis

The researcher proceeds with the assumption that ADR process requires ethical values to be
defined through legislations as current ethical values does not have a sound legislative backing.

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 VALUES ASSOCIATED WITH ALTERNATIVE DISPUTE RESOLUTION

Alternative Dispute Resolution is mostly emphasized and is now pursued by various

organizations as well as Individuals to resolve the disputes. There was a time when lawyers and
legal personalities who were associated with Alternative Dispute Resolution were often
considered to be having a good ethical conscience. The reason is that one strand of Alternative
Dispute Resolution has always associated itself with pursuing “good” and the “just,” but as the
time lapsed the other strand of Alternative Dispute Resolution (quantitative, efficiency
concerned, cost-reducing, docket clearing) which has produced institutionalized forms of dispute
resolution in the courts and in private contracts is taking over the former one.

Lawyers now interact with their clients while having different behavior and intentions which are
inconsistent with the original idea and goals of Alternative Disputes Resolution, to win the case,
advocates use their tactful skills to manipulate the dispute resolution process, take for instance
negotiation strategies of arriving late to throw off the other side, “take it or leave it” offers, and
creating calendar conflicts are all adversarial tactics that may keep the meter running, and
usually do not serve the client’s best interests. 2 This often leads to dilution of qualitative and
good and just values associated with Alternative dispute resolution. The most appropriate ethics
which a lawyer should follow is by keeping their client’s interest over their own, by ensuring
fairness and honesty in their approach and lastly, by leaving behind their tactful and adversarial
bargaining strategies. The lawyer should not only behave ethically responsible towards their
client but also hold respect towards the legal process as a whole. The crucial challenge which is
presented in front of the Alternative dispute resolution practitioner is to carefully create a balance
between the process and outcome in such a way that doesn’t prejudice or create any loss towards
the client.3

2
Ibid.
3
Deeksha Dubey, Role of Professional Ethics in Alternate Dispute Resolution, available at
http://jcil.lsyndicate.com/wp-content/uploads/2018/05/ROLE-OF-PROFESSIONAL-ETHICS-IN-ALTERNATIVE-
DISPUTE-RESOLUTION-Deeksha-Dubey-5.pdf, last accessed at 8/12/2021 at 3:00pm

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 ETHICS RELATED TO MEDIATION

It all starts with the word "ethics," which refers to the process of determining whether or not a
certain activity is ethical. Although it appears to be simple, it is perplexing when it comes to
practical use. This is due to the fact that what is right and wrong might differ from person to
person depending on their personal viewpoint. Other elements, such as the circumstances in
which the individual is at the time, the person's culture, beliefs, or mindset, all play a role in
determining what is right and wrong. As a result, what one party thinks to be the correct
principle may be completely incorrect for another. Certain ground principles must be established
in order to maintain uniformity in the face of uncertainty and ambiguity.

Mediation is a technique for resolving disagreements. It is the process of resolving disagreements

with the help of a neutral third person, such as a mediator, who tries to encourage the parties in
dispute to reach an unforced and voluntary agreement. Negotiation, communication, facilitation,
and techniques are the mainstays of mediation (that have been taken to solve the disputes).
Nonetheless, adhering to the greatest professional standards, such as independence, honesty, and
integrity, is crucial.

The following are among the most common ethical concerns with mediation:

1) The third person, who is a neutral party to the entire mediation process, is responsible for
keeping the entire mediation process entirely secret.

2) He should have no financial ties to any of the parties.

3) Both parties should stick to a common ground that will make it easier for them to achieve a
solution.

Ethics plays an important role in mediation; it works as a trust factor on which both the parties to
a dispute rely on. Ethics are those moral principles which should be followed by the mediator
and the parties, but it is the work of the mediator to maintain or to run the mediation on ethical
ground. There are certain ethics that need to be followed everywhere such as confidentiality,
justice, fidelity, and others.4
4
Akarsh Kumar and Ashutosh Pareek, Mediation ethics in India, available at https://imwpost.com/mediation-ethics-
in-india/, last accessed at 8/12/2021 at 4:40pm.

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With the growing relevance of mediation in India, the Supreme Court has taken steps to send
specific matters to mediation and has established guidelines for doing so. The Indian Arbitration
and Conciliation Act of 1996 follows the UNCITRAL model, with Section 75 establishing
certain confidentiality restrictions in mediation and conciliation. It states that the conciliator or
mediator, as well as the parties, must keep all matters confidential unless disclosure is required.

With the help of these rules, India maintains ethics by maintaining confidentiality, which binds
the parties to be loyal to one another. The importance of ethics can be further examined by
looking at various case laws that illustrate how the Supreme Court is encouraging mediation as a
solution to the backlog of cases by advising disputing parties to seek mediation. Furthermore, the
Supreme Court has secured parties' trust in mediation by enacting laws (Arbitration and
Conciliation Act 1996, Court-connected Mediation under the Supreme Court (Civil Procedure)
Rules, 2005).5

In Moti Ram (D) Thr. L.Rs. and Anr. vs. Ashok Kumar and Anr. 6, the parties were involved in a
property dispute that the Supreme Court ordered to be resolved through mediation. The mediator
then submitted a report to the court that included numerous settlement and proposition offers
made by the parties that were kept confidential. "If the mediation succeeds, by both parties to the
Court without stating what transpired during the mediation sessions," the Supreme Court stated.
If the mediation fails, the mediator should simply write down the outcome in his report and
submit it to the court, noting that the "Mediation was failed." Aside from that, the mediator
should not divulge anything that was discussed, recommended, or done during the mediation.7

ETHICS RELATED TO ARBITRATION

All regulations place a strong emphasis on the neutrality and independence of arbitrators.
Although the arbitrator's independence and neutrality emerge as a key concept, it clearly goes
beyond ethics. It is firmly enshrined in arbitration law and arbitration standards of arbitral
5
Ibid.
6
[2010] 14 (ADDL.) SCR 809
7
Supra note 5.

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tribunals all over the world. Arbitrators are even obliged to sign a proclamation of independence
before they may accept an appointment as an arbitrator in some arbitral institutions, such as the
International Chamber of Commerce (ICC). In all cases, courts and arbitration institutions will
dismiss arbitrators who are found to be non-neutral and non-independent.

Codes of Ethics provide out the procedures that must be followed in order to keep the arbitration
process running smoothly. They deal with a variety of aspects of arbitration proceedings.

1. Related to Appointment of Arbitrator : Codes of Ethics dictate that a party may consult
with an arbitrator on occasion, but that the benefits of the dispute should not be
mentioned in such a consultation. These codes do not impose any obligation on the
arbitrator to inform the other arbitrators about the discussion. When an arbitrator cannot
devote the time and attention that the parties reasonably require to the dispute, he should
decline the appointment. He should define his availability before granting his approval.
Furthermore, he should not be granted assent to an appointment if he lacks the essential
language and technical competence – and should communicate this with the parties and
the arbitral institution honestly.
2. At the beginning of the Proceedings: The arbitrators must make certain that both parties
are aware of the arbitration procedure. They must instil in the parties the importance of
avoiding contacting their arbitrator and instead addressing all queries and disputes
regarding the procedures to the tribunal, with copies sent to the other parties.
3. Related to Compensation: In many arbitration institutions, the salary of the arbitrator is
set by the institution according to a fee schedule. The arbitrators must, however, indicate
their hourly rate in certain arbitration organizations, such as the London Court of
International Arbitration or the Netherlands Arbitration Institute. Arbitrators must
indicate their own remuneration in all instances with so-called "ad hoc" arbitrations, i.e.,
arbitrations conducted outside of arbitration institutions.8 Arbitrators shall make every
effort to conduct fair and timely hearings. They should, however, proceed with the
mechanism in a way that aids the parties in resolving the disagreement if they so desire.
Arbitrators' decisions must not only be correct in fact and law, but also meet the parties'

8
Code of Ethics for Arbitrators in Commercial Disputes, available at https://www.cprAlternative Dispute
Resolution.org/resource-center/protocols-guidelines/ethics-codes/code-of-ethics-for-arbitrators-in-commercial-
disputes, last accessed at 9/12/2021 at 5:00 pm.

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requirements to the greatest extent possible. In fact, the law frequently allows a variety of
options from which the arbitrator must choose the one that best matches the parties' needs
and options.

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 CONCLUSION
There are several advantages to choosing Alternative dispute resolution over uncomfortable and
time-consuming litigation. Alternative dispute resolution is more adaptive in nature, as it
includes privacy, party independence, conclusiveness in enforcing awards, and a speedy
settlement mechanism, among other things. However, unscrupulous tactics, repeated pauses
owing to judicial rulings, impractical expenses, and unnecessary delays have eroded these
qualities. As a result, the development of the Alternative dispute resolution procedure's
productive technique has slowed. Institutional arbitration could be a possible end result of all of
these roadblocks, and it should be fostered and favored to prevent Alternative dispute resolution
from becoming another corrupt litigation procedure. As long as arbitrators, judges, and even
civilians are aware of their own ethical obligations, the Alternative dispute resolution mechanism
will thrive and continue to evolve in order to contribute positively to the resolution of disputes.

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 BIBLIOGRAPHY

1. Akarsh Kumar and Ashutosh Pareek, Mediation ethics in India

This paper analyzed that how mediation functions in the Indian judiciary, and what are its
impacts of adhering to ethical principles. It also analyses that how Indian judiciary accepts and
makes it a proper and fast way to dispute resolution. This paper first makes us understand the
mediation, upon moving further it describes the ethics involved in it along with some case laws.

2. Deeksha Dubey, Role of Professional Ethics in Alternate Dispute Resolution

This paper addresses the matrix of ethical dilemma faced by ADR process, concept of legal
professionalism and suggestive methods which can resolve such ethical concern. And also
discusses the theories of philosophers like Aristotle and Kant in order to provide a better
understanding of ethical principles and moral behaviour.

3. Nikhil Verma, Ethics in ALTERNATIVE DISPUTE RESOLUTION in Context of

Mediation, Arbitration and Conciliation

In this article the author explains the ethics involved and needed in the process of mediation,
arbitration and conciliation and conclude that as far as arbitrators and, judges and civilians have
knowledge of their individual ethical obligation, the ADR mechanism will prosper and keep
developing to make a positive contribution in resolving disputes.

4. Moti Ram (D) Thr. L.Rs. and Anr. vs. Ashok Kumar and Anr

In this case the supreme court ordered the mediation to be conducted between the parties. The
mediator then presented the court with a report that comprised various secret settlement and
proposition offers made by the parties. The Supreme Court declared, "If the mediation succeeds,
by both parties to the Court without saying what transpired during the mediation sessions." If the
mediation fails, the mediator should simply write down the outcome in his report and submit it to
the court with the notation "Mediation failed."

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