Ethical Issues Alternative Dispute Resolution

Alternative dispute resolution (ADR) gives rise to a number of ethical questions. Some relate to particular forms of ADR, others to ADR in general. One of the key questions regarding ADR in general is whether it provides second-class justice. Some observers believe that ADR is not as fair as the process provided by the traditional legal system because it is much less formal, is not always bound by substantive law, and is private (hence not open to public scrutiny). Although many people view these characteristics as benefits, other observers see them as costs and argue that ADR is used only by those who lack the money, the time, or the knowledge to use the better system—the courts. This view is at least partially supported by data that reveal that the bulk of community mediation center clients are the poor who have no other access to the justice system (Abel 1982).

Ironically, others see the court system as the second-class process and private alternatives, such as private judging, as the first-class alternative. This view argues that private judging has all the procedural safeguards of the courts yet is almost always much faster; it has the further benefit of allowing the disputants to choose the judge, which they cannot do in the public system. These observers question whether the rich should be allowed to buy a gold-plated process while others are left with bogged-down courts that take too many procedural shortcuts to try to cut caseloads—yet still remain terribly slow. It has also been argued that private judging is harming the public judicial process by siphoning off the best judges and taking the steam out of needed reform measures. The suggestion has also been made that ADR is replacing a good but overburdened system with an inferior system, rather than putting the effort into fixing the problems of the court system to make it work more effectively.

Other ethical questions revolve around particular processes. With both mediation and arbitration, there are questions about the qualifications and certification of providers. Since the field is still quite new, there are no standard procedures for training or certification. Anyone can hang a sign on the door, proclaiming themselves to be a mediator or an arbitrator. Although most have some training, few have a great deal of training and experience when they start practicing. Hence the quality of service is highly variable.


Questions of neutrality and impartiality are also problematic in mediation and arbitration. Although it is assumed that a mediator or arbitrator should be both neutral and impartial, in practice this can be hard to accomplish. Mediators often take a liking or disliking to one or more of their clients. Should they then withdraw from the case because they can no longer act impartially? Answers to this question differ from person to person. Suppose the mediator realizes that one party is overpowering another, or that one party is lying or otherwise subverting the process. Should he or she expose the problem or not? To preserve the fairness of the process, the mediator would have to, yet to do so is a violation of the standard of confidentiality, another cornerstone of most mediation codes of ethics. What if the parties agree to a settlement that appears to the mediator to be grossly unfair to one of the parties, or perhaps to a third party who is not at the table (to the children in a divorce situation, for example)? Should the mediator try to convince the parties to alter their agreement? Or should the mediator withdraw from the process (thereby absolving him- or herself of responsibility)