Ethics, Neutrality and Professional Conduct
The Ethics, Neutrality and Professional Conduct domain tests independence, impartiality, disclosure, confidentiality and the limits of the neutral's role. Questions commonly ask whether a neutral should disclose a connection, continue, or withdraw.
Independence and impartiality
Independence concerns relationships (financial, professional, personal); impartiality concerns state of mind and bias. A neutral may be independent yet biased, or impartial yet conflicted. Disclosure is judged by the parties' objective perception; the IBA Guidelines' red, orange and green lists structure but do not replace that test. The duty is continuing throughout the proceedings.
The neutral's role
A mediator should not advise on the law, represent a party, or impose an outcome. An arbitrator or adjudicator must not decide on grounds not argued, must give both sides an opportunity to be heard and must not take secret evidence. In all processes, the neutral must not use information for personal advantage and must handle settlement offers with care.
Conflicts of role
A mediator who previously acted for one party should not accept the appointment without informed consent. Acting as mediator and then as counsel or arbitrator in the same dispute is generally unacceptable. Fee arrangements contingent on settlement undermine neutrality. A mediation agreement commonly excludes the neutral's liability except for fraud and bars the neutral from giving evidence.
Confidentiality
Limited by agreement, statute and the public interest: threats of violence, child protection, money laundering, terrorism, fraud, and regulatory disclosure.
Worked example
A mediator discovers that her firm advised the respondent on an unrelated transaction two years ago. Orange-list factors and the passage of time may not resolve the objective perception test. She discloses the connection in writing to both parties, explains the safeguards - no file access, a separate team, no fee share - but the claimant objects. She should decline or withdraw unless the claimant gives informed, written consent.
Traps
Treating independence and impartiality as synonyms; assuming disclosure is a one-off at appointment; confusing confidentiality with legal privilege; assuming a mediator may give legal advice or that a neutral can later act as counsel in the same matter.
Drafting ADR Clauses, Agreements and Settlements
The Drafting ADR Clauses, Agreements and Settlements domain tests whether you can produce instruments that work: enforceable, certain, and not self-defeating.
Drafting the dispute resolution clause
A good clause specifies scope, the chosen process, the institution, the seat, the number of arbitrators, language, governing law of both the contract and the arbitration agreement, and any carve-out for interim relief. Avoid pathologically indefinite wording: 'arbitration in London under the ICC Rules' is workable; 'arbitration in two cities', 'may if both agree', and optional clauses that lead to deadlock are not.
Tiered clauses
Multi-tier clauses (negotiation, then mediation, then arbitration) can work but must be drafted as conditions precedent in clear language, with defined time limits. An unqualified agreement to 'negotiate in good faith' is often unenforceable for uncertainty, so specify a process, a period and when the right to arbitrate arises.
Settlement agreements
Settlement agreements need certainty of parties, recitals, operative terms (payment, timing, interest on late payment, tax), releases, confidentiality, non-disparagement, governing law, jurisdiction and a signature block for those with authority. Consider recording as a consent or Tomlin order where immediate enforceability matters, or structuring the settlement to fit the Singapore Convention.
Mediation agreements
The agreement to mediate should set out appointment, fees, confidentiality, authority to settle, exclusion of neutral liability, and a statement that the process is voluntary and non-binding until signature.
Worked example
A clause reads: 'The parties shall attempt to settle any dispute amicably and, failing that, may refer the dispute to mediation in any venue. If mediation fails, the dispute may be resolved by arbitration.' Two defects: 'attempt to settle amicably' is too vague to enforce as a condition precedent, and neither the mediation process nor the arbitration seat and institution is specified. Redraft with fixed periods, a named institution and a defined seat.
Traps
Drafting an agreement to agree; forgetting the law governing the arbitration agreement; leaving the seat blank; settlement terms lacking payment mechanics; signature by someone without authority.