Over 70 in-house dispute resolution counsel responded to the IMI ADR Users Survey.
The Survey covered questions rarely asked of corporate users, including:
- Criteria that are used to select a neutral
- Importance of prior user feedback on neutrals
- Whether neutrals should belong to an ADR professional institution
- Mediation as a mandatory process step in litigation & arbitration
- Whether outside counsel are an impediment to mediation
- Should outside counsel be trained in mediation advocacy
To view the Summary of the results, please see below.
IMI International Corporate Users ADR Survey
IMI invited in-house counsel responsible for managing dispute resolution in international corporations to participate in an IMI Survey looking into their attitudes and approaches to arbitration and mediation. The Survey ran from mid-January to mid-March 2013. This seems to have been the first time that in-house dispute resolution counsel had been asked for their views on many of the issues raised at an international scale. Seventy-six in-house dispute resolution counsel from North America and Europe completed all (or in the cases of 5 responders, almost all) of the Survey.
The IMI Survey was designed to address gaps not covered in two previous user surveys, both conducted in 2011. The IMI Survey focused more on in-house counsel needs, attitudes and preferences regarding issues concerning information, professional quality standards and the skills they expect from their arbitrators, mediators and outside counsel.
The IMI Survey was circulated to an informed group of in-house dispute resolution counsel, including members of the Corporate Counsel International Arbitration Group (CCIAG – www.CCIAG.com) and the Mediation and Conflict Management Round Table of German Business (RTMKM – www.RTMKM.de). The majority of responders (64%) had arbitration and mediation experience, with 14% having experience of mediation but not arbitration, and a further 14% having experience of arbitration but not mediation. Only 8% of responders had no personal experience in either mediation or arbitration.
Most responders were either senior in-house legal counsel (63%) or senior management (20%) in their companies with 17% indicating they were engaged in other corporate roles. 71% of responders were from corporations with over 10,000 employees, and 18% were employed by companies having between 1,000 and 10,000 employees.
The IMI Survey, like most other surveys, was based on multi-choice answers to a range of propositions, principally to enable the Survey to be completed relatively quickly. Many of the questions referred collectively to “Neutrals” which the Survey’s preamble defined as meaning both arbitrators and mediators.
There were 10 sections in the IMI Survey and the results are summarised below (the full results are at: www.IMImediation.org/imi-international-corporate-users-adr-survey-full-results).
1. Criteria in-house counsel apply when selecting a Mediator
In-house counsel would rely on the following when selecting a mediator:
|Criteria||Agree %||Neutral %||Disagree %|
|Experience as a mediator||99||1||0|
|Experience as a lawyer||56||38||6|
|Expertise in the core issue of the case||85||10||5|
|Evidence that the mediator’s competency has been independently assessed||83||14||3|
|Mediator’s ranking in league tables||38||41||21|
|Independently-verified feedback from users||88||9||3|
|Anonymous user quotes on mediator’s website||16||38||45|
|Recommendation of law firm/other adviser||78||19||3|
|Mediator’s personality and attitude||93||7||0|
|Past experience with a particular mediator||97||3||0|
|Mediator subscribes to a Code of Conduct of a professional institution for mediators||77||15||8|
|Gender of the mediator||4||33||63|
|Culture of the mediator||38||36||26|
2. Criteria in house counsel apply when selecting an arbitrator
|Criteria||Agree %||Neutral %||Disagree %|
|Experience as an arbitrator||95||5||0|
|Experience as a lawyer||89||9||2|
|Experience in the sector to which the case relates||96||3||1|
|Evidence that the arbitrator’s competency has been independently assessed||84||15||1|
|Arbitrator’s ranking in league tables||38||45||17|
|Independently-verified feedback from users||87||8||5|
|Anonymous user quotes on arbitrator’s website||15||43||42|
|Recommendation of law firm/other adviser||83||16||1|
|Arbitrator’s personality and attitude||85||14||1|
|Past experience with a particular arbitrator||91||8||1|
|Arbitrator subscribes to a Code of Conduct of a professional institution for mediators||72||21||7|
3. All Neutrals should seek feedback from users and make that feedback openly available to future users (in summary format, prepared by an independent person or institution while preserving the anonymity of the feedback giver).
Over three quarters of responders (77%) favoured this proposition with only 8% against and 15% ambivalent:
4. All Neutrals should belong to an ADR professional institution that has a rigorous and public code of ethics backed up by a disciplinary process.
Three quarters of responders favour this proposition, with 4% against and 20% ambivalent:
5. ADR professional institutions (ie bodies certifying the competency of mediators and/or arbitrators should (a) not be a service provider or otherwise earn income from users; or (b) could be a service provider; or (c) no view one way or another.
60% responded that competency-certifying bodies should not provide ADR services to the dispute resolution market or otherwise earn service income from users. 28% considered that service providers could do this, and 12% had no view.
6. Parties to an Arbitration proceeding should be actively encouraged by the Arbitration Provider to use mediation to settle their dispute.
Almost three quarters of responders felt that arbitration providers should be actively encouraging parties to use mediation. 22% were ambivalent and 4% disagreed.
7. Mediation should be a compulsory procedural step in the conduct of all commercial disputes, in both litigation and arbitration
“Compulsory” is a strong term and opinion on this issue was more evenly spread. This question followed the less aggressive proposition in Q6. Nonetheless, almost half (48%) of responders were in favour of mediation being a compulsory procedural step in both litigation and arbitration, with 37% disagreeing and 15% ambivalent.
8. Mediators should not be purely facilitative but adopt a proactive idea-generating role, including proposing solutions and settlement options.
With 77% of responders favouring a more proactive style of mediation, this result broadly confirms trends detected in previous surveys.