Relativity Applies to Physics, Not Ethics: Ethical Absolutes in the Evolving Practice of ADR

That statement, famously and broadly attributed to Albert Einstein “Relativity applies to physics, not ethics,”[1] underscores the very core of a fundamental truth in professional behaviour: ethical norms are timeless, unambiguously contextual, conditional (i.e., contingent on context), or expedient.[2] This persistency plays directly into the provinces of Alternative Dispute Resolution (ADR), wherein while both mediation and negotiation are seen as adversarial litigation preventive methods[3], they rely on drastically different role orientation and consequently ethical duties.[4] Mediation is a facilitative, interest-based process—the neutral mediator’s chief job is to ensure that the mediated process remains fair and impartial for all parties[5]—where negotiation is aggressive, interest-influenced negotiations where the negotiator — frequently an advocate or attorney — has a paramount loyalty duty to his/her client.[6] So ethical standards in these two roles are different (albeit common where some core principles are involved – such as honesty, confidentiality and avoidance of conflicts of interest)[7]. Therefore, it is important to appreciate these differences if we are to keep up faith in ADR as a bona fide form of judicial system.[8]

Impartiality and Neutrality are the first two amongst a Mediator’s ethical duties.[9] A mediator is not supposed to side with one party or even let an opinion to affect the result.[10] The Model Standards of Conduct for Mediators[11] and the Indian Mediation Bill 2023[12] both explicitly mandate arbitrators to avoid any potential source of conflict, expose previous relationship with any party involved in the mediation, and if required by the situation, abstain from participating in mediations. For example, if while mediating a commercial dispute it comes to the attention of the mediator that they have previously advised a subsidiary of one party, they must declare this and withdraw if impartiality may reasonably be questioned. But impartiality goes further, to procedural justice: both must receive equal chance to present their points and be part of the process. Related to impartiality is the obligation of confidentiality. This is the accepted norm in private caucus, and this could not be shared with other side without consent of disclosing party — the principle of Indian jurisprudence was adopted like in Salem Advocate Bar Assn.[13] In the matter of Gujarat Bottling Co Ltd v. Union of India[14], the SC went on to hold that confidentiality was an integral part of ADR proceedings. Mediators also need to obtain the informed consent of participants (although generally not in writing) with respect to the nature of mediation, its voluntary nature and the fact that anything agreed may or should be recorded as appropriate. Another axiom is competence; mediators must be not only technical but also possess good communication, cross-cultural skills, and be able to manage power. Most of all, a good mediator should not get too creative with making outcomes acceptable to him or her but rather must just help the actual parties make informed choices for themselves. This is difficult when dealing with an imbalance of power that cannot be negotiated, but the ethical line is a tightrope only crossed medical guidelines prohibit coercion or false impressions.[15]

Well, the ethical framework of negotiators—it’s these plots at a different point entirely. They owe primary loyalty to the client, and they are entitled to engage in zealous representation within the bounds of law and professional conduct. Bar Council of India Rules, as well as all similar professional codes[16]—the ABA Model Rules is an example—require that those who negotiate must act “diligently,” protect client confidences and raise for consideration by the opposing party only those issues consistent with what he believes may be lawfully put in play while negotiating. Note that while negotiators in this view can do things like selective disclosure, they cannot tell any lies of material fact: truthfulness is still an ethical constraint. If, for example, a negotiator in settlement talks knows that his client has an unsafe product on the market then he cannot hide it – but they may not spill the beans about all other minor issues. Confidentiality is equally as important here, although in this case it mostly serves to protect client privilege, which a client can choose to break. Likewise, negotiators ought to be wary of sharp practice: going over or across the line between legitimate and illegitimate bargaining behaviour with procedural loopholes, when a lack of knowledge by your opponent transforms into bad faith. At the same time, they are encouraged and often expected to engage in strategic plan to increase outcomes for their client; for example, timing disclosures or framing an offer in a manner that builds power.[17]

So, while different underlying role orientations may exist, these bridges of ethical common ground serve to integrate the two structures. Ethics, conflicts of interests, competence and the autonomy of the parties applies equally to mediators as well as negotiators.[18] But the nature of these obligations diverges significantly in terms of their weight and circumstances. The loyalty of a mediator is spread out between all parties involved as well as to the process, whereas a negotiator focuses their loyalty only on the client.[19] Mediators are ethically prevented from employing strategies that benefit one side at the cost of the other, while negotiators can and often should act in an even more partisan manner, provided they stay within their ethical boundaries.[20] International practice reinforces these distinctions. The under ICC and WIPO arbitration guidelines as well, mediators are advised to disclose any factor that may compromise impartiality (as timely disclosed) and the siding out of an arbitrator where necessary[21], whilst in having bias in mind CEDR tips for negotiators promote promoting client’s needs only within ethical limits[22]. And these differences show up in a very concrete way in practice. A negotiator, to take a kind of straw-man extreme, can use time pressure to extract a settlement before an event in the environment would strengthen the other side while the mediator has no such option and must allow deliberative decision-making or risk complete derailment.[23]

These in-the-field and behind-the-scenes roles present differing, increasingly complex ethical challenges for the digital age. The confidentiality and security of data is paramount (Online Dispute Resolution this brings concerns over how exactly people can be authenticated). Mediators need to secure digital communication and prevent new forms of domination in online procedures, while negotiators must protect cyber risks from hacking or fraudulent use of evidence. Cultural circumstance compounds the complexity. Cultural norms, of course, can influence the tone and style of communication or how decisions are made — but not whether mediators must be neutral or negotiators loyal to their clients. And this is where Einstein’s quote rings most true to us: ethical conduct may need to be adjusted according to cultural norms, but the conduct itself is absolute.[24]

At the end of the day, ethics in ADR is not situational. As mediators and negotiators deserve different ethical guidelines regarding their roles, one will always have the same underlying principles: truthfulness, fairness, due consideration for free choice (don´t coerce), avoidance of conflicts of interest and professionalism. But the difference is that mediators maintain these norms for the purpose of shielding course and all players equally, while negotiators usage them just like a staunch lawyer.[25] Keep in mind the importance of maintaining these distinctions as well – if one blends the ethical principles too closely together, it runs the risk of eroding ADR’s credibility.[26] By maintaining a staunch adherence to objective ethical norms, ADR practitioners are also safeguarding that what is ultimately sought in choosing any non-litigation process as opposed to proceeding at law also stands on solid ethical ground — the belief that it will create results which are not only less costly and faster than those delivered via litigation, but just as well.[27]

Another critical parameter which enhances the ethical divergence between mediation and negotiation is the effect of cross-culture considerations in Alternative Dispute Resolution (ADR). Mediation commonly occurs across diverse cultural, linguistic and legal landscapes and neutrality alone is an insufficient response to one of the most fundamental tenets of mediation — the mediator’s ethical responsibility to mediate culturally.[28] This means being aware of cultural mores and adapting communication, pace, and process to build in inclusivity and fairness. Not respecting cultural norms may result in bias, even if not intentional, and may harm the perceived objectivity of the mediator.[29] Their focus is not on how the differences between Japanese consumer behaviour and American patterns could improve all Starbucks cultural characteristics but only on getting themselves a better deal for their client. They may capitalise on cultural knowledge to build rapport, gain concessions or predict the views of their counterparts if they do not violate laws or codes of conduct[30]. The ethical boundary is thus no longer the role — as a mediator would always be obliged to ensure cultural awareness benefits each of the two parties equally, but whether doing so whilst being knowledgeable about commonplace culture amounts honest nor fair, albeit with bias inlaying favour of their clients’ best interests.[31]

The development of ADR on an international level also demonstrates the necessity for ethical standards in writing. The (2002) UNCITRAL Model Law on International Commercial Conciliation and the Singapore Convention on Mediation (2019) further extort mediators to engage in their duties in a neutral, confidential and independent manner regardless of which jurisdiction it is conducted in.[32] And these rules, although not binding upon negotiators, provide a lens through which to view negotiation ethics as they serve to generate norms of procedural legitimacy that mediating negotiators must respond to when negotiating in the shadow of mediation.[33] By comparison, the Model Standards of Conduct for Mediators in the United States and the UK’s Civil Mediation Council Code of Conduct set out clear ethical duties on mediators including a requirement to disclose conflicts avoid coercion and refrain from providing legal advice unless they are qualified and authorised to do so. While negotiators lack directly corresponding universal codes, they are due to domestic professional conduct rules.[34] For instance, the Bar Council of India Rules provide that advocates should protect their client’s interests in an honest manner without misleading the court or participating in fraud.[35]

Examples will illustrate the operational use case difference with these ethical obligations. For example, in an extensively documented commercial dispute in Singapore, the mediator was placed into a dilemma when a party disclosed confidential information related to financial distress only to the mediator which could be extremely material for settling value. Ethical considerations required the mediator to keep all information confidential, unless granted express permission by a party to share which in this case could disadvantage that party.[36] In contrast, in a parallel example from a well-publicized American corporate negotiation one high-profile negotiator was able to make use of information gathered from public filings regarding an impending regulatory investigation on the part of a competitor as leverage to negotiate settlement (admissible as a matter of right in negotiation and open to dispute as unethical mediation conduct). In these instances, lay the ethical relativity that Einstein urges us against — for even as truth and fairness are universally sought concepts, their implementation is dependent upon the role one assumes.[37]

While the emergence of Online Dispute Resolution (ODR) platforms in current practice poses new ethical dilemmas. In an ODR environment, mediators must make sure that technology does not hurt procedural fairness; for example, ensuring that both the parties have equal access to a stable internet connection or digital literacy.[38] From cyber breaches to data privacy to even the integrity of digital evidence, ethical responsibilities now include all things electronically stored. They may however under different means be in the same environment, leading to different temptations such as to exploit technological asymmetries or tools for information gathering and yet being restricted both legally and professionally from carrying out surveillance, invading privacy or misrepresentation.[39] So even if both roles work in precisely the same technological environments, the ethical separation remains.

Moreover, growing discussions around the AI-negotiation and mediation tools exacerbate the Paul Bunyan-esque profile as to just how sharp our ethics need to be. If AI-driven decision-support systems are used in mediation, mediators have the obligation to disclose that fact and to guarantee transparently any AI-generated suggestions should not unduly influence or undermine party autonomy.[40] However, negotiators could deploy AI to simulate offers, predict the behaviour of their opponents or develop persuasive arguments without a need for disclosure insofar as doing so remains legal and truth-conforming.[41] Again, the origin of this divergence is the mediator’s duty to assure probity when protecting the process and the negotiator’s instruction to advocate a client’s cause within acceptable limits.[42]

The psychological component should be also considered when analysing these ethical differences. Mediators, like therapists are asked to embody detached empathy whereby they can understand what the mediator is going through without aligning with either position. It is an ethical task, which needs to be acquired in the training of mediators and maintains trust in the role of the mediator.[43] By contrast, negotiators work from an attitude of “aligned empathy,” which suggests that they step into their client’s emotional and strategic shoes as part of effective advocacy.[44] It is not the conduct itself that is an ethical risk, but where either one of two nefarious surprises: (a) the practice bleeds over to manipulation or even unethical behaviour; and (b) our good faith and fair play get muffled.[45]

This causes mediator & negotiator ethics to finally converge at the grandest conceptual level, the fact that all of what makes good a mediator does so because it inherently contributes to honesty, respect, and power balancing. But the ways to achieve those values look quite different across role, context, and governing norms. We are brought back to Einstein’s dictum that “Relativity is physics, not ethics” — a sobering memento for the practitioner that ethical relativism cannot absolve them from their professional obligations. Sure, but still with the qualification that ethics in ADR are role-bound — fixed as an ideal but determined by the specific circumstances in which they are applied. The prime ethical obligation for mediators is to the process and its integrity; for negotiators it is to the client’s interests within the bounds of law and justice. Appreciating this split is not only an exercise in academic rigour but goes to the heart of securing public faith in ADR as a key part of dispute resolution at both domestic and transnational levels. The professional who understands and internalises these distinctions in his very bones — and can, therefore, represent them when acting — will not only be able to keep within the formal ethical codes of his or her occupation but meet the golden mean between compliance and trustworthiness (which is a gold standard that ADR seeks to institutionalize) as well.

• [1] Albert Einstein, The Ultimate Quotable Einstein (Alice Calaprice ed, Princeton University Press 2019) 145.
• [2] David Luban, Legal Ethics and Human Dignity (Cambridge University Press 2007) 28.
• [3] Jacqueline M Nolan-Haley, ‘Alternative Dispute Resolution in a Nutshell’ (4th edn, West Academic Publishing 2013) 5.
• [4] Carrie Menkel-Meadow, ‘Ethics Issues in Arbitration and Related Dispute Resolution Processes: What’s Happening and What’s Not’ (2009) 56 UCLA L Rev 949, 955.
• [5] Christopher W Moore, The Mediation Process: Practical Strategies for Resolving Conflict (4th edn, Jossey-Bass 2014) 55.
• [6] Charles B Craver, ‘Negotiation Ethics for Real World Interactions’ (2009) 25 Ohio St J on Disp Resol 299, 302.
• [7] American Bar Association, ‘Model Rules of Professional Conduct’ (ABA 2020) rr 1.6, 1.7, 2.1.
• [8] Laurence Boulle, Mediation: Skills and Techniques (3rd edn, LexisNexis Butterworths 2011) 12.
• [9] Laurence Boulle, Mediation: Skills and Techniques (LexisNexis 2011) 65.
• [10] Christopher Moore, The Mediation Process (4th edn, Jossey-Bass 2014) 41.
• [11] American Bar Association, Model Standards of Conduct for Mediators (2005) Standard II.
• [12] The Mediation Bill, 2023, Bill No 110-C of 2021, s 12.
• [13] Salem Advocate Bar Assn v Union of India (2005) 6 SCC 344.
• [14] Gujarat Bottling Co Ltd v Coca Cola Co (1995) 5 SCC 545.
• [15] Leonard L Riskin and Nancy A Welsh, ‘Is That All There Is?: “The Problem” in Court-Oriented Mediation’ (2008) 15 Geo Mason L Rev 863, 876.
• [16] Bar Council of India, Bar Council of India Rules, Part VI, Chapter II – Standards of Professional Conduct and Etiquette (as amended up to 2023).
• [17] Carrie Menkel-Meadow, ‘Ethics in Alternative Dispute Resolution: New Issues, No Answers from the Adversary Conception of Lawyers’ Responsibilities’ (1997) 38(1) South Texas Law Review 407.
• [18] Bar Council of India, Bar Council of India Rules, Part VI, Chapter II (Standards of Professional Conduct and Etiquette), Rule 1.
• [19] Carrie Menkel-Meadow, ‘Ethics in Alternative Dispute Resolution: New Issues, No Answers from the Adversary Conception of Lawyers’ Responsibilities’ (1997) 38 South Texas Law Review 407.
• [20] American Bar Association, Model Rules of Professional Conduct (ABA 2020) r 4.1.
• [21] International Chamber of Commerce (ICC), Mediation Rules (2021) art 5; World Intellectual Property Organization (WIPO), WIPO Mediation Rules (2020) art 14.
• [22] Centre for Effective Dispute Resolution (CEDR), Model Mediation Procedure and Code of Conduct (CEDR 2019).
• [23] Leonard L Riskin, ‘Understanding Mediators’ Orientations, Strategies, and Techniques: A Grid for the Perplexed’ (1996) 1 Harvard Negotiation Law Review 7.
• [24] Albert Einstein, The Ultimate Quotable Einstein (Alice Calaprice ed, Princeton University Press 2019) 145.
• [25] Laurence Boulle, Mediation: Skills and Techniques (LexisNexis 2011) 19.
• [26] Janet Rifkin, ‘Ethics in Mediation and Negotiation: A Critical Examination’ (2003) 9 Ohio State Journal on Dispute Resolution 1.
• [27] Christopher W Moore, The Mediation Process (4th edn, Jossey-Bass 2014) 33.
• [28] Nadja Alexander, International and Comparative Mediation (Wolters Kluwer 2009) 132.
• [29] Carrie Menkel-Meadow, ‘Cultural Differences in Conflict Resolution’ in Jay Folberg and Allison Taylor (eds), The Handbook of Dispute Resolution (Jossey-Bass 2012) 94.
• [30] Deborah Kolb and Judith Williams, Everyday Negotiation: Navigating the Hidden Agendas in Bargaining (Jossey-Bass 2000) 42.
• [31] Richard Birke and Jennifer Gerarda Brown, ‘The Ethics of Cross-Cultural Mediation’ (2005) 23 Negotiation Journal 253.
• [32] UNCITRAL, Model Law on International Commercial Conciliation (2002); United Nations, Singapore Convention on Mediation (2019).
• [33] Charles H. Craver, ‘Negotiation Ethics: The Role of Negotiators in Alternative Dispute Resolution’ (2010) 27 Ohio State Journal on Dispute Resolution 255.
• [34] American Bar Association, Model Standards of Conduct for Mediators (2005); Civil Mediation Council (UK), Code of Conduct (2016).
• [35] Bar Council of India, Bar Council of India Rules, Part VI, Chapter II (Standards of Professional Conduct and Etiquette).
• [36] Nadja Alexander, International and Comparative Mediation (Wolters Kluwer 2009) 155–157.
• [37] Carrie Menkel-Meadow, ‘Ethics in Alternative Dispute Resolution: New Issues, No Answers from the Adversary Conception of Lawyers’ Responsibilities’ (1997) 38 South Texas Law Review 407.
• [38] Ethan Katsh and Janet Rifkin, Online Dispute Resolution: Resolving Conflicts in Cyberspace (Jossey-Bass 2001) 132–134.
• [39] Richard Susskind, The Future of the Professions (Oxford University Press 2015) 190–193.
• [40] Woodrow Barfield and Ugo Pagallo, ‘The Ethics of AI in Dispute Resolution’ in Woodrow Barfield and Ugo Pagallo (eds), Research Handbook on the Law of Artificial Intelligence (Edward Elgar Publishing 2020) 245.
• [41] Cary Coglianese, ‘AI in Negotiation: The Promise and Limits of Algorithmic Advocacy’ (2019) 15 Yale Journal of Law & Technology 225.
• [42] Carrie Menkel-Meadow, ‘Ethics in Alternative Dispute Resolution: New Issues, No Answers from the Adversary Conception of Lawyers’ Responsibilities’ (1997) 38 South Texas Law Review 407.
• [43] Laurence Boulle, Mediation: Skills and Techniques (LexisNexis Butterworths 2011) 44–46.
• [44] Michele LeBaron, Bridging Cultural Conflicts: A New Approach for a Changing World (Jossey-Bass 2003) 98–99.
• [45] Carrie Menkel-Meadow, ‘Ethics in Alternative Dispute Resolution: New Issues, No Answers from the Adversary Conception of Lawyers’ Responsibilities’ (1997) 38 South Texas Law Review 407.