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.
9. In my experience, outside lawyers are often an impediment to the mediation process.
47% of in-house counsel agreed with this proposition and 15% disagreed with it. 38% were neutral on this subject.
10. I expect my arbitration and litigation counsel to have been trained in mediation advocacy skills.
An 80% positive response in support of this statement, with 14% ambivalence and 6% against it, indicates a very strong expectation among in-house counsel that their outside counsel should be trained in mediation advocacy skills.
The IMI Survey and Other Recent Corporate ADR User Surveys
2011 Cornell/Pepperdine/CPR Survey
In 2011, a survey of the in-house counsel in 368 Fortune 1,000 companies was conducted by Cornell and Pepperdine Universities together with CPR Institute as a follow-up to a 1997 survey conducted by Cornell. The results of this survey have been reported in Living with ADR: Evolving Perceptions and Use of Mediation, Arbitration and Conflict Management in Fortune 1,000 companies .
The Cornell/Pepperdine/CPR Survey, probably the most extensive contemporary research among ADR users, was designed to identify trends among corporate users, surface emerging ADR policies and practices and understand the drivers of those trends, policies and practices. It confirms the findings of the IMI Survey, although it had a very different set of goals. The Cornell/Pepperdine/CPR survey, conducted almost entirely in North America, demonstrated that a high proportion (97%) of US in-house counsel responders had experience with mediation and arbitration or both, with 45% saying they “frequently” use ad hoc mediation and 37% using mediation “occasionally”. In total 12% were “frequent” users of arbitration and 35% were “occasional” users of arbitration. The IMI Survey also found a high level of mediation and arbitration experience among in-house corporate responders. It is reassuring that both surveys benefited from highly-informed and experienced users.
2011 Commercial Mediation Group (CMG) Survey
In 2011 a UK initiative, the Commercial Mediation Group, conducted a survey  focused mainly on mediation practice issues. Unlike the IMI Survey and the Cornell/Pepperdine/CPR survey, both of which were restricted to corporate in-house dispute resolution counsel, the CMG survey invited responses from over 60 law firms, and a smaller number of UK in-house counsel and other users were also surveyed.
Three questions similar to those in the CMG survey were also included in the IMI Survey, namely whether mediation should be a compulsory process step, whether mediators should be purely facilitative, and whether outside lawyers are an impediment to mediation (see sections 7, 8 and 9 of the IMI survey).
On the question whether mediation should be compulsory, 20% of CMG responders agreed, 13% were neutral and 67% disagreed (the IMI result was 48% agreed, 15% neutral and 37% disagreed).
On whether mediators should be more proactive than purely facilitative, 68% agreed, 25% were neutral and 7% disagreed (IMI Survey: 77% Agreed, 8% were neutral and 15% Disagreed).
On whether outside lawyers are an impediment to mediation, 5% agreed, 15% were neutral and 80% disagreed (IMI Survey: 47% agreed, 38% neutral, 15% disagreed).
IMI ADR Users Survey – Main Conclusions
- Users want more information about mediators and arbitrators. They want evidence that their competency has been independently assessed, they want them to belong to professional organizations that are not service providers, and to subscribe to rigorous Codes of Practice in ADR that render them subject to disciplinary processes – like any other mainstream professions.
- Past experience with mediators and arbitrators is vital to selection decisions – whether that experience is the user’s own, or that of their counsel, or of previous users of the neutrals under consideration captured in independently-prepared feedback summaries (for which a strong demand was identified).
- Arbitration providers are expected by three quarters of corporate users to be proactively encouraging parties to mediate their disputes, and almost half want Courts and Tribunals to make mediation “compulsory” in both litigation and arbitration.
- Three quarters of corporate users want mediators to be more proactive/assertive as opposed to purely facilitative (there may be a cultural element in this result as the Survey did not ask responders whether they had actually experienced both types of mediation).
- Almost half the corporate users surveyed found their outside counsel to be an impediment to the mediation process, and only 14% felt their lawyers were not a barrier to mediation, in contrast to the views of outside counsel when asked the same question. Over 80% of users expect their outside counsel to have been trained in mediation advocacy skills.
April 4th, 2013
To download this summary, click here
To download a presentation of the survey results, click here
IMI international Corporate Users ADR Survey Results – Comments:
The times are a changing – when it comes to selecting a mediator
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IMI International Corporate Users ADR Survey Findings Released
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International Mediation Institute publishes survey results on in-house counsel’s attitudes to mediation
Article by Alexander Oddy, Michael Mills and Anita Phillips, Herbert Smith Freehills LLP
April 16, 2013