There was an important talk on ADR ethics. Michael Cochrane, an Ontario lawyer, regularly leads discussions at Ontario Bar Association events, focusing on mediation and arbitration. He’s spent years pushing for alternatives to courtroom battles, recognizing that litigation often drains time, money, and energy from clients who want a resolution.
But he doesn’t just talk about the benefits—he dives into the messier side of ADR that many avoid: the ethical gray areas.
One of the most significant issues in mediation and arbitration is neutrality. Mediators are supposed to be impartial, but what happens when they have a hidden bias? Or when they’ve worked with one party before? Lawyers in Toronto have debated whether full disclosure is enough or if specific mediators should step away from cases without a hint of prior connection.
Michael Cochrane has seen these conflicts firsthand. In one case, a mediator failed to mention a long-standing business relationship with one of the parties. The opposing side found out later and felt the entire process had been compromised. Trust in ADR took a hit, and the dispute ended up back in court.
Another ethical challenge is confidentiality. Mediation thrives on it—parties feel safe sharing information because it’s not supposed to leave the room. But what happens when something unethical surfaces?
A mediator once discovered a business owner had knowingly falsified financial records during negotiations. Confidentiality rules bound the mediator, but they also faced a moral dilemma: let a fraudulent agreement stand or break the code of silence. These situations aren’t hypothetical—they happen, and lawyers often disagree on the right call.
Talk on ADR ethics
Then there’s the problem of power imbalances. ADR assumes both sides negotiate in good faith, but that’s not always true. Michael Cochrane has spoken about situations where one party—usually a large corporation—pressures an individual into arbitration instead of court, knowing they can outlast them financially. Some critics argue that ADR can be a tool for the powerful to sidestep accountability.
Cochrane’s upcoming OBA event will tackle these uncomfortable realities head-on. He’s not just selling mediation as a perfect solution—he’s asking the hard questions and challenging lawyers to think critically about how ADR is practiced. Anyone who works in this space knows ethical issues aren’t abstract. They shape real cases and affect actual outcomes.
