Ethics, confidentiality, impartiality and professional conduct
Ethics, confidentiality, impartiality and professional conduct
This domain tests the standards expected of neutrals and advocates: independence, impartiality, disclosure, confidentiality, competence and fair process. The exam often asks you to identify a conflict, a confidentiality breach, or an improper role switch.
Core rules
- Impartiality is absence of bias or preference; independence is absence of connections that could influence the neutral. Both are required; disclosure supports both.
- Duty to disclose conflicts should be ongoing; an arbitrator or mediator should disclose facts that may reasonably create doubts about impartiality. Institutional rules and codes, such as the IBA Guidelines on Conflicts of Interest, use red, orange and green lists.
- Confidentiality protects mediation communications and often arbitration deliberations. It is not absolute: exceptions can include consent, court order, threats, abuse, crime, or regulatory requirements.
- Professional conduct: competence, integrity, avoiding misleading conduct, not accepting improper gifts, not communicating ex parte with one party in a contested process, and charging transparent fees.
- Role boundaries: a mediator should not later act as arbitrator in the same dispute without informed consent; a tribunal should not delegate its decision to an expert.
Worked example
A mediator learns in a private caucus that one party can pay no more than $2 million, while its open position is $3 million. The other party asks, 'What is their real limit?' The mediator must not reveal the caucus information without consent. The mediator can say the process is exploring affordability and ask whether the other side can justify its figure. If the party later proposes a settlement that would conceal a criminal offence, the mediator should consider whether a confidentiality exception or withdrawal is required. The same neutral should not accept an appointment as arbitrator in the same dispute without full disclosure and informed consent.
Traps
- Treating impartiality and independence as synonyms.
- Assuming mediation confidentiality is absolute.
- Failing to disclose a distant but relevant connection.
- Engaging in ex parte communications in arbitration.
- Switching from mediator to arbitrator without consent.
- Accepting a gift or hospitality that creates an appearance of bias.