by Adebiyi Deborah (with A Tope Tokan-Lawal FCIArb) [1] (This article was originally published in the 6th Edition of the UNILAG ADR Society’s ADR Journal and is reproduced here in its original form for the benefit of our readers.)
1.0 INTRODUCTION
Alternative Dispute Resolution (ADR), a process whereby a neutral third party helps disputing parties in reaching an agreement and resolving their dispute out of court,[2] has become an increasingly important mechanism for resolving disputes outside the traditional courtroom setting. Unlike litigation, which is generally conducted in open court, ADR processes often provide parties with increased privacy and flexibility in resolving disputes. It is therefore common for individuals and businesses to resort to ADR, particularly in situations where they wish to preserve commercial relationships, protect sensitive information or avoid the publicity associated with court proceedings. ADR is broadly categorised into arbitration, mediation, conciliation and negotiation.
What then happens when, for instance, an insurance company wishes to protect its reputation and therefore resorts to arbitration rather than litigation? The company enters the process with the expectation that the dispute will be determined by an independent and impartial arbitrator in accordance with established arbitral standards. However, contrary to this expectation, the arbitrator allows a conflict of interest or personal bias to influence the outcome of the proceedings. In such circumstances, ADR ceases to be an instrument of fairness and instead becomes a vehicle for injustice.
This scenario highlights the importance of ethical conduct in maintaining parties’ confidence in ADR processes. The legitimacy of ADR depends not only on its efficiency and confidentiality but also on the integrity of those who administer it. Arbitrators, mediators and other ADR practitioners are expected to act impartially, avoid bias, maintain confidentiality and uphold the highest standards of professional responsibility.[3]
This paper examines the importance of ethical conduct in Alternative Dispute Resolution by analysing the core principles of neutrality, impartiality, confidentiality and professional responsibility, as well as the challenges these ethical concerns pose to the effectiveness and credibility of ADR processes in Nigeria.
2.0 CONCEPT OF ETHICS IN ALTERNATIVE DISPUTE RESOLUTION
Ethics refers to the moral principles and professional standards that guide conduct and decision-making.[4] In ADR, ethics encompasses the rules, duties and standards that govern the behaviour of arbitrators, mediators, conciliators, counsel and parties involved in dispute resolution processes.
Ethical standards in ADR seek to ensure that proceedings are conducted fairly, independently, competently and in a manner that inspires confidence among disputing parties. These standards are particularly important because ADR processes often operate with fewer procedural safeguards than court proceedings and therefore rely heavily on the integrity of the neutral third party.
An important manifestation of ethics in arbitration is the obligation imposed on prospective arbitrators to disclose any circumstances likely to give rise to justifiable doubts regarding their impartiality or independence[5]. Equally, an arbitrator should not accept an appointment unless satisfied that he or she possesses the necessary competence and sufficient availability to devote adequate time and attention to the proceedings. These obligations reflect the broader ethical principles of integrity, transparency and fairness that underpin modern arbitral practice and help safeguard the legitimacy of the arbitral process.
The major ethical pillars of ADR include professional responsibility, confidentiality, neutrality and the avoidance of bias.
2.1 Professional Responsibility
Professional responsibility[6] requires ADR practitioners to conduct themselves with honesty, competence, diligence and integrity. ADR practitioners have an ethical duty to advise clients on the various methods of resolving disputes. While some practitioners serve as neutral arbitrators or mediators, others act as advocates for parties involved in ADR proceedings.
In such situations, they must protect the interests of their clients while preserving the fairness and integrity of the process. Beyond the duties owed to their clients, ADR practitioners also owe a duty to promote a fair and just outcome. This may be achieved by maintaining professionalism and avoiding conduct that has the tendency to undermine the legitimacy of the proceedings.[7] For instance, it is a violation of professional responsibility for an arbitrator or mediator to improperly disclose confidential information obtained in the course of the proceedings without the consent of the parties or other lawful justification.
For arbitrators, professional responsibility includes ensuring procedural fairness, treating parties equally, avoiding unnecessary delays and making decisions based solely on the evidence and arguments presented.[8] Professional responsibility also extends to maintaining competence. ADR practitioners should possess adequate knowledge of the applicable law, procedural rules and dispute resolution techniques necessary for the effective conduct of proceedings. A lack of competence may compromise the quality and fairness of the process just as much as intentional misconduct.
2.2 Confidentiality
Confidentiality is one of the most important principles of ADR. Parties often choose arbitration or mediation because sensitive commercial, financial or personal information can be discussed without the publicity associated with court proceedings.
The duty of confidentiality generally requires arbitrators, mediators and participants to refrain from disclosing information obtained during the course of the proceedings except where disclosure is authorised by law, required by a court order, agreed by the parties or necessary to protect a legal right.[9] Even in situations where disclosure becomes necessary, it must generally be done with the consent of the parties.[10]
The confidentiality obligation is crucial because it encourages candour and openness during negotiations and settlement discussions. Without confidence that information disclosed during ADR will remain protected, parties may be reluctant to participate fully and honestly in the process.
2.3 Neutrality and Impartiality
Neutrality and impartiality are often used interchangeably, although they are conceptually distinct. Neutrality refers to the absence of any interest in the outcome of a dispute. An ADR practitioner should not have any personal, financial or professional stake in the result of the proceedings. Impartiality, on the other hand, concerns the ability of the neutral to treat all parties fairly and without favouritism. An arbitrator may be neutral in the sense that they have no interest in the outcome yet still exhibit conduct that creates an appearance of partiality.
In arbitration, the concepts of independence and impartiality are particularly important. Arbitrators are expected to disclose any circumstances that may reasonably give rise to doubts regarding their independence or impartiality. Such circumstances may include financial interests, prior professional relationships, family connections or any other factor capable of creating a perception of bias.
The duty of disclosure serves an important preventive function. It enables parties to assess whether a potential conflict exists and, where necessary, challenge the appointment of an arbitrator[11] before substantial resources are expended on the proceedings.
2.4 Bias
Bias is one of the greatest threats to the legitimacy of ADR processes. It occurs where a decision-maker consciously or unconsciously favours one party over another. Bias may be actual, apparent or unconscious. Actual bias exists where a decision-maker genuinely favours one side. Apparent bias arises where circumstances would lead a reasonable observer to conclude that there is a real possibility of partiality, even if no actual prejudice exists. Unconscious or implicit bias refers to attitudes and assumptions that influence judgement without the decision-maker’s awareness.[12]
In ADR proceedings, bias may arise from prior relationships with parties, repeated appointments by the same organisation, cultural assumptions, economic interests or preconceived views about particular individuals or groups. For example, where an arbitrator is repeatedly appointed by a particular company or industry participant, concerns may arise regarding whether such repeated appointments could consciously or unconsciously affect the arbitrator’s decision-making.[13] Similarly, cultural stereotypes, gender assumptions or personal experiences may influence how evidence is perceived and evaluated. For this reason, modern ethical standards[14] emphasise transparency, disclosure[15] and self-awareness as important safeguards against bias.
3.0 ETHICAL CHALLENGES FACING ADR PRACTICE IN NIGERIA
3.1 Conflict of Interest
Conflict of interest remains one of the most significant ethical concerns in ADR practice. It arises where an ADR practitioner’s personal, financial or professional interests conflict with the duty to act fairly and independently. Conflicts may occur where an arbitrator has previously advised one of the parties, maintains a business relationship with a party or possesses a financial interest that may be affected by the outcome of the dispute.
As stated in Part II Rule 3 of Chartered Institute of Arbitrators Code of Professional and Ethical Conduct for Members,[16] arbitrators and mediators must avoid situations where there would be a conflict of interest between them and their clients. The appropriate response to a potential conflict is prompt disclosure.[17] Where disclosure is insufficient to cure the conflict or where the conflict is substantial, withdrawal from the proceedings may be necessary to preserve the integrity of the process.
3.2 Inequality of Bargaining Power
ADR processes are often premised on party autonomy and voluntary participation. However, significant disparities in financial resources, negotiating strength or legal sophistication may affect the fairness of outcomes. A multinational corporation negotiating with a small business, or an employer negotiating with an individual employee, may possess advantages that place the weaker party at a substantial disadvantage.
Mediators and other ADR practitioners must therefore ensure that all parties have a reasonable opportunity to participate effectively in the process and make informed decisions regarding any proposed settlement.[18] [19]
3.3 Lack of Ethical Awareness and Enforcement
Although ethical standards exist within professional and institutional frameworks, compliance and enforcement remain challenges in some instances. Not all ADR practitioners receive adequate ethics training, and parties may be unaware of the standards expected of neutrals. Strengthening ethics education and disciplinary mechanisms is therefore essential to maintaining confidence in ADR practice.
4.0 LEGAL AND INSTITUTIONAL FRAMEWORKS REGULATING ADR ETHICS
4.1 Constitution of the Federal Republic of Nigeria 1999 (as amended) [20]
Although the Constitution does not specifically regulate ADR ethics, the constitutional guarantee of fair hearing under section 36 reflects broader principles of fairness, impartiality and justice that also underpin ADR proceedings.
4.2 Arbitration and Mediation Act 2023
The Arbitration and Mediation Act 2023 is the principal legislation governing arbitration and mediation in Nigeria. The Act emphasises fairness, impartiality and procedural integrity throughout arbitral proceedings. The Act imposes disclosure obligations on arbitrators and provides mechanisms for challenging arbitrators where legitimate concerns arise regarding their independence or impartiality. It also contains provisions relating to confidentiality and the proper conduct of proceedings.
4.3 Chartered Institute of Arbitrators Code of Professional and Ethical Conduct
The Chartered Institute of Arbitrators (CIArb) Code of Professional and Ethical Conduct establishes standards governing the behaviour of arbitrators, mediators and other dispute resolution professionals. The Code emphasises integrity, fairness, competence, impartiality, confidentiality and the avoidance of conflicts of interest. Members are required to uphold the reputation of the profession and conduct themselves in a manner that promotes confidence in ADR processes.
4.4 International Bar Association Guidelines on Conflicts of Interest in International Arbitration
The International Bar Association (IBA) Guidelines on Conflicts of Interest in International Arbitration have become influential global standards for assessing independence, impartiality and disclosure obligations in arbitration. Although not legally binding, the Guidelines provide useful guidance on situations that may give rise to actual, potential or perceived conflicts of interest.
4.5 Model Standards of Conduct for Mediators
The Model Standards of Conduct for Mediators set out internationally recognised ethical principles relating to mediator impartiality, competence, confidentiality, quality of process and professional integrity. These standards continue to influence mediation practice across various jurisdictions.
5.0 RECOMMENDATIONS
- ADR practitioners should undergo regular ethics and professional responsibility training to strengthen awareness of emerging ethical challenges.
- Greater emphasis should be placed on disclosure obligations to ensure that potential conflicts of interest are identified and addressed at an early stage.
- ADR institutions should establish effective complaint and disciplinary mechanisms for addressing ethical violations.
- Mediators and arbitrators should receive specialised training on recognising and managing implicit bias.
- Parties should be encouraged to conduct appropriate due diligence before appointing arbitrators or mediators, particularly in high-value commercial disputes.
- Institutional arbitration rules should continue to strengthen transparency measures relating to arbitrator appointments, repeat appointments and conflict disclosures.
6.0 CONCLUSION
The success of Alternative Dispute Resolution does not depend solely on the speedy settlement of disputes, but also on the ability of the process to deliver justice fairly, impartially and ethically. Where bias, conflicts of interest or significant inequalities of bargaining power exist, the very essence of ADR is undermined and confidence in the process may be diminished.
ADR remains an important mechanism for resolving disputes because it offers parties a faster, more flexible and often more confidential alternative to litigation. However, the effectiveness and credibility of ADR depend largely on the ethical conduct of arbitrators, mediators and other ADR practitioners. Principles such as neutrality, impartiality, confidentiality and professional responsibility are essential to ensuring that parties receive a fair and just resolution of their disputes.
Although various national and international legal instruments, institutional rules and ethical codes have established standards to guide ADR practice, challenges such as conflicts of interest, unconscious bias and disparities in bargaining power continue to arise. It is therefore important that ADR practitioners remain committed to the highest standards of integrity, transparency and professionalism in the discharge of their duties.
Maintaining high ethical standards is essential to preserving public confidence in ADR and ensuring that it remains a credible, reliable and effective means of dispute resolution in Nigeria and beyond.
[1] Adebiyi Deborah is a 400-Level Student of the Faculty of Law, University of Lagos, Lagos, Nigeria. A Tope Tokan-Lawal FCIArb is a dual qualified lawyer (Texas, USA and Nigeria) and a Partner at Osuntuyi & Tokan-Lawal Law
[2] K. Shonk, “What is Alternative Dispute Resolution”. Available at https://www.pon.harvard.edu/daily/dispute-resolution/what-is-alternative-dispute-resolution/ Katie shonk (accessed 18 May 2026).
[3] The precise content of professional responsibility obligations varies across jurisdictions and institutional frameworks. In Nigeria, legal practitioners are principally governed by the Rules of Professional Conduct for Legal Practitioners 2023, while arbitrators and mediators may also be subject to applicable institutional codes, including the Chartered Institute of Arbitrators (CIArb) Code of Professional and Ethical Conduct and other relevant ADR rules. Notwithstanding these differences, common ethical obligations generally include competence, integrity, fairness, diligence, confidentiality and the avoidance of conflicts of interest.
[4] See IGI Global (n.d.) ‘’Ethics in higher education” Available at: https://www.igi-global.com/dictionary/ethics-in-higher-education/10276(Accessed 18th May 2026).
[5] Arbitration and Mediation Act 2023, s 8
[6] The precise content of professional responsibility obligations varies across jurisdictions and institutional frameworks. In Nigeria, legal practitioners are principally governed by the Rules of Professional Conduct for Legal Practitioners 2023, while arbitrators and mediators may also be subject to applicable institutional codes, including the Chartered Institute of Arbitrators (CIArb) Code of Professional and Ethical Conduct and other relevant ADR rules. Notwithstanding these differences, common ethical obligations generally include competence, integrity, fairness, diligence, confidentiality and the avoidance of conflicts of interest.
[7] Brahmbhatt, G. (n.d.) Ethical considerations in alternative dispute resolution: Professional responsibility and conflict resolution. Available at: https://books.google.com.ng/books?id=q_4IEQAAQBAJ (Accessed 18th May 2026).
[8] Arbitration and Mediation Act 2023, s 30
[9] See Arbitration and Mediation Act 2023, s 76
[10] Arbitration and Mediation Act 2023, s 75
[11] Arbitration and Mediation Act 2023, s 8(3)
[12] American Psychological Association, “Implicit Bias” (APA Dictionary of Psychology) https://dictionary.apa.org/implicit-bias (Accessed 19th May 2026).
[13] Scribb, “Explicit bias” Available at https://www.scribbr.com/research-bias/explicit-bias/ (Accessed 19th May 2026
[14] See, for example, Standard 2 of the Model Standard of Conduct for Mediators which provides that a mediator should act free from favouritism and bias. It further provides that a mediator should not act based on personal beliefs, background and should not accept nor give gifts that raises questions on the mediator’s perceived impartiality.
[15] Arbitration and Mediation Act 2023, s 8(1)
[16] Part II Rule 3 of Chartered Institute of Arbitrators Code of Professional and Ethical Conduct for Members, 2009.
[17] Section 8(1) of the Arbitration and Mediation Act 2023 requires a prospective arbitrator, from the time of appointment and throughout the arbitral proceedings, to disclose without delay any circumstances likely to give rise to justifiable doubts as to his or her impartiality or independence. In determining whether particular circumstances warrant disclosure, arbitrators often look to the International Bar Association (IBA) Guidelines on Conflicts of Interest in International Arbitration, which, although non-binding, are widely recognised as persuasive guidance on disclosure and conflict management.
[18] Several ADR institutions have adopted measures designed to mitigate disparities in bargaining power and access to justice. For example, consumer and employment arbitration protocols administered by the American Arbitration Association (AAA) and JAMS often limit the fees payable by individual claimants and allocate a greater share of administrative and arbitrator costs to the corporate party. Although such measures do not eliminate power imbalances, they seek to reduce financial barriers to participation and enhance procedural fairness in ADR proceedings.
[19] Larson, B.E and Hansen, S.B. (1992) ‘Ethics in ADR: Issues of Confidentiality and neutrality’, Brief, 22, p.14, note 3
[20] Cap C23 LFN 2004