Legal Education Digest
S R Peppert
 LegEdDig 24; (2005) 13(4) Legal Education Digest 11
54 J Legal Educ 1, 2004, pp 72–78
If one wishes to enlarge the ADR canon, the topic of ethics may seem an unlikely place to start. Most books and textbooks on negotiation and ADR discuss ethics and scholars have published many articles dealing with both negotiation and mediation ethics. What then is so new about ADR ethics?
The topic of ADR ethics can be broken into two related parts: the ethics of exchange, which deals with the moral and legal implications of bargaining; and the ethics of assistance, which deals with the ethical issues that arise whenever a third party intervenes in a dispute. This paper argues that central questions remain about the ethics of exchange, such as how to think about honesty and fairness in the context of bargaining, whether negotiators have any ethical obligation to cooperate rather than compete, and how best to understand a lawyer’s role in negotiation.
Bargaining is morally complicated. Whenever negotiators interact, there is opportunity for deception and manipulation, evasion and exploitation. Given that bargaining fuels our economy and our polity, governs our daily affairs, and structures our relations, an insight into the moral and ethical dimensions of bargaining is fundamentally important.
How can such ethical obligations be monitored or enforced? Should they vary by context, and if so, how? And what is a lawyer’s role in all of this? Do these various moral or ethical restraints apply to an attorney’s negotiations in the same way that they might apply to a client’s?
First, how should we think about honesty and fairness in negotiation? These are the two most difficult moral problems bargainers face. They raise all sorts of questions. Far more work has been done on the issues of honesty and disclosure than on the problem of fairness, but both areas remain ripe for discussion.
Second, is there a duty to cooperate in bargaining? Negotiation scholars have long described the basic tension between problem-solving, collaborative or cooperative strategies and more adversarial, ‘hard,’ or competitive strategies. In general we have discussed this choice as a pragmatic one. On the one hand, if you are a problem solver, you may be able to expand the pie by coming up with value-creating trades that satisfy one or both parties’ interests. On the other hand, if you adopt a more competitive strategy, you may be able to exploit the other side, particularly if the other side is unsophisticated, inept, or overly trusting.
These pragmatic considerations are no doubt important. Equally interesting, however, is whether a negotiator — principal or agent — has any moral obligation to try to collaborate or expand the pie. Much recent moral theory has been done on this topic, although negotiation scholars seem largely unaware that their field has become of great interest to philosophy departments.
A third area ripe for continued consideration is the lawyer’s role in negotiation. Many ADR scholars have urged lawyers to adopt more problem-solving or collaborative strategies in order to best meet their clients’ interests. Many lawyers, however, remain sceptical. Even if I want to collaborate, I cannot because it will put my client in jeopardy.
This role conflict is easily dismissed, minimised or overlooked, but it is not as easily resolved. Many scholars have made the empirical assertion that, although adopting a problem-solving or collaborative orientation may sacrifice some gains for some clients some of the time, overall it will produce better outcomes.
At a more fundamental level, ADR scholars need to re-examine our assumptions about the short- and long-term tradeoffs that must be made when an individual lawyer and/or client seeks to adopt a collaborative approach to bargaining. Finally, and most broadly, there is work to be done on how conflict and conflict resolution contribute to moral development. It is increasingly clear that conflict — and the choices one makes in conflict — can serve as a millstone under which to grind our moral sensibilities.
Just as negotiation or exchange has moral consequence, so does conflict intervention. Whenever a third party steps between two disputants, she risks that her attempt to assist will be mistaken for a desire to control or an effort to serve her own ends. The interventionist must manage these perceptions and the ever-present possibility that they are accurate — that, indeed, her motives or means are not as pure as we might hope.
First, many questions remain about the ethics of the mediator’s role. In the last two decades we have focused primarily on the debate about what mediation is and whether certain approaches to mediation — particularly evaluative approaches — are mediation or should be practised. The facilitative-evaluative-transformative debate continues. At the same time, however, ADR scholars and practitioners have begun to discuss many other interesting ethical issues related to the mediator’s role.
Second, interest is growing in the ethical issues raised by the growing use of ADR processes in different contexts and institutional settings. As mediation becomes embedded in ombudsman offices, etc., it raises questions about how traditional conceptions of confidentiality and neutrality apply in these settings.
Finally, there remain ethical issues related to the institutionalisation of ADR and the growth of the mediation and arbitration professions as professions. We remain a decentralised and relatively unorganised profession. Ethics codes abound, but many mediators practise in ignorance of their relevance.
Both the ethics of exchange and the ethics of assistance continue to provoke discussion, debate, and research. Each raises difficult moral questions, such as when one can lie or what it means to be neutral when intervening between disputing parties. Each also raises difficult professional ethics questions, such as how best to reconcile one’s competing roles as lawyer, negotiator, or mediator, or how the mediation profession can best self-regulate.