While the discussion about vocational standards continues, numerous
associations have drafted competence and ethical standards for either
mediators or arbitrators as well as for both procedural methods.
Ethical standards focus more on the procedural process and the
duties and virtues of the leader of the procedure than on the
occupational competence standardization, such as codes of practice,
benchmarks, agreements, models and exemplars which are the
“classical” forms of standards for practices.5
Codes of practice determine the vocational rules of a profession,
which may contain penalty regulations for misconduct. Benchmarks
are a set of options which orient on successful approaches which have
been proved in a certain professional field. Agreements focus on the
“Agreement to Mediate” which the parties voluntarily agree on when
using ADR. Models are preconceived rules or assessing criteria, which
can be adopted to centralize the standardization approach. Exemplars
are the collection and evaluation of successful ADR cases, which can
be optionally awarded.6
Predominantly, ethical standards appear as an appendix of codes of
practice, wherein certain etiquettes, virtues and qualities of the
procedural leader are determined.
5 NADRAC, A Framework for ADR Standards, p. 52-55.
6 NADRAC, A Framework for ADR Standards, p. 52-55.
Table of Contents
1 Introduction
1.1 Abstract
1.2 Objective of the Paper
1.3 Procedure of Analysis
2 ADR Standards
2.1 Distinction between Arbitration and Mediation
2.1.1 Definition Arbitration
2.1.2 Definition Mediation
2.2 Role of Ethics
2.2.1 Ethical Standards within other professions and occupations
2.2.2 Are standards necessary?
2.3 Summary
3 Comparative Perspective
3.1 Ethical Standards for Arbitrators
3.2 Ethical Standards for Mediators
3.3 Comparative Approach
4 Conclusion
Research Objectives and Themes
This paper examines the ethical obligations of arbitrators and mediators, investigating whether these two groups share identical or diverse professional duties within the realm of alternative dispute resolution (ADR). The study explores the necessity of standards to ensure professionalism and consumer protection, while highlighting the distinct roles of the neutral third party in arbitration versus mediation.
- Distinction between determinative arbitration and facilitative mediation processes
- Identification of core ethical duties such as impartiality, neutrality, and confidentiality
- Comparison of professional ethical standards for lawyers and ADR practitioners
- Analysis of institutionalized standards versus flexible voluntary guidelines
Excerpt from the Book
2.1.1 Definition Arbitration
When arbitration has been at its early development stage, it was regarded to be a simple form of settling disputes because the arbitrator only derived the authority by the appointment of the parties. This attitude has changed within the past years and the arbitral process has developed into a “more complex, more legalistic [and] more institutionalized” procedure.
However, common elements for the definition of arbitration do exist. Arbitration is used to settle disputes by a neutral third party, which is appointed by or on behalf of the parties. Nowadays, the dispute is decided by an arbitral tribunal, which consists of either one or more arbitrators. After the evidential proof and the hearing of the parties the arbitrator(s) will issue an award. The decision by the arbitrator(s) is binding and can be generally enforced by a court of law.
Unlike in mediation, the arbitral process seeks for a decision rather than suggesting a compromise. Therefore, the decision making process is comparable to the legal proceeding of the courts. The decision making and the award are mandatory elements of the arbitral process. Thus, arbitration and litigation have more similarities than arbitration and mediation.
Summary of Chapters
1 Introduction: Provides an overview of the growing importance of ADR and the necessity of establishing occupational standards for practitioners.
2 ADR Standards: Defines the core differences between arbitration and mediation and discusses the role and necessity of ethics in these fields.
3 Comparative Perspective: Applies theoretical ethical concepts to specific industry codes, such as the IBA’s standards for arbitrators and LEADR’s guidelines for mediators.
4 Conclusion: Synthesizes the findings, confirming that while core ethical virtues are similar, the procedural roles necessitate different approaches to standardization.
Keywords
Alternative Dispute Resolution, Arbitration, Mediation, Ethical Standards, Professionalism, Impartiality, Confidentiality, Neutrality, ADR Practitioners, Legal Realization, Consumer Protection, Institutionalization, Self-determination, Code of Conduct, Conflict of Interest
Frequently Asked Questions
What is the primary focus of this paper?
The work focuses on the comparative analysis of ethical standards for arbitrators and mediators, exploring their professional obligations and the necessity for standardized conduct.
Which central fields are covered in the research?
It covers the definitions of arbitration and mediation, the role of ethics in ADR, the impact of professional backgrounds, and the specific application of ethical codes to procedural leaders.
What is the main objective of the paper?
The objective is to determine whether arbitrators and mediators are subject to the same or diverse professional obligations as determined by current ethical standards.
What methodology does the author employ?
The author uses a comparative analysis method, evaluating theoretical concepts of ADR and testing them against two selected professional standards (IBA and LEADR).
What does the main part of the document address?
The main part analyzes the distinction between facilitative and determinative processes, examines ethical duties of lawyers transitioning into ADR, and contrasts specific arbitration and mediation codes.
Which keywords best describe this research?
Key terms include Alternative Dispute Resolution, Arbitration, Mediation, Ethical Standards, Impartiality, Confidentiality, and Professionalism.
How do arbitration and mediation differ in terms of confidentiality?
While confidentiality is a core, mandatory ethical requirement in mediation, it plays a relatively minor role in arbitration compared to other procedural duties.
Why is self-determination considered essential in mediation?
Self-determination is a principle that ensures the parties maintain control over the resolution process, distinguishing the mediator's facilitative role from the arbitrator's judging role.
- Quote paper
- Julli Markgraf (Author), 2003, Ethical Standards for Arbitrators and Mediators, Munich, GRIN Verlag, https://www.grin.com/document/22517
