On 29 September 2016, various stakeholders from the judicial and alternative dispute resolution (ADR) community – arbitrators, mediators and judges, in-house counsel, external lawyers, policy-makers as well as representatives of arbitral institutions – gathered in sunny Geneva for a lively exchange on “the future of dispute resolution” at the city’s GPC event.
What made the Geneva conference different from previous dispute resolution seminars I have attended was the opportunity for discussion between the heterogeneous stakeholders involved in the various stages of a dispute, from in-house counsel, who are often the first involved when a disagreement arises, to the mediator or arbitrator who eventually helps resolve the dispute.
The interactive format had conference participants working hard in small groups to vote on and answer key questions about different types of dispute resolution processes and their desired outcomes, different stakeholders’ roles in the process and how it all can be improved. The results of the voting were presented separately according to stakeholder category, allowing us to see how our responses differed.
Some surprising results
The most interesting results that are worth considering in our future work as ADR practitioners showed a surprising divide in the attitudes of in-house and external counsel toward dispute resolution..
When asked what is achieved by participating in mediation or conciliation, external lawyers indicated that reduced costs and expenses were the most important result, with improving or restoring relationships coming in a distant fourth. In-house counsel, however, chose improving or restoring relationships as their overwhelming first choice, with reduced costs coming in a distant third.
This points to the fact that approaches to dispute resolution that aim at restoring relationships with a counterparty are more important to in-house counsel and, perhaps, to the company’s management, than external advisers may think. This suggests that we as ADR practitioners should consider using non-adjudicative dispute resolution processes more often when long-standing or important business relationships are at stake.
An effective combination
When asked what the most effective dispute resolution processes commonly involve, external lawyers chose combining litigation/arbitration with conciliation/mediation, whereas in-house counsel overwhelmingly preferred pre-escalation processes to prevent disputes.
For both groups, using adjudicative processes (litigation and arbitration) only was an option that lagged far behind. Also, most stakeholders chose pre-escalation processes as the tool most likely to improve the future of dispute resolution. This points to the fact that adjudicative processes are perceived as ineffective and that in-house counsel prefer negotiation even over a combination of adjudicative and non-adjudicative methods.
Fascinatingly, an analysis of the results gathered thus far in five GPC host cities – Singapore, Lagos, Mexico City, New York and Geneva – show striking similarities in participants’ answers to this question, although these cities are diametrically different in culture and legal tradition. At all five conferences, using adjudicative processes alone was deemed an ineffective choice.
Most participants thought that education in business and law schools on different dispute resolution mechanisms was one of the most important factors in improving parties’ understanding of their different options. In fact, the Geneva Bar School is now introducing a course on ADR in its pre-bar exam courses for this reason.
Mediation and other non-adjudicative processes as the future of dispute resolution?
Anna-Maria Tamminen has described mediation as “the new ‘international arbitration’ for our generation” on the Young ICCA Blog the publication of the Young lawyers group of the International Council for Commercial Arbitration.
Similarly, the consensus among most participants in Geneva seemed to be that mediation and other non-adjudicative processes are rapidly winning ground and are desirable from a party perspective. One of the reasons for this are changes in corporate attitudes toward conflict prevention, including a desire to simply negotiate more intensely with the counterparty to the exclusion of lawyers prior to initiating a formal dispute resolution process.
Participants underlined that, in Switzerland and elsewhere, compulsory or voluntary conciliation and mediation results in extremely high settlement rates. It is common knowledge in Switzerland that the conciliation procedure mandated by law prior to starting most litigation proceedings leads to settlement in over 80% of cases. In some districts, the number increases to over 90%.
Interestingly, many participants want to make the results of mediation binding, with about 50% or more of each group of stakeholders approving of the idea of legislation or conventions regulating the recognition and enforcement of settlements, including those reached in mediation.
The consequences of overspecialisation
How do we explain the gaps between what parties and in-house counsel seem to want – to restore relationships with counterparties and to use less confrontational legal tactics – and what external counsel are used to providing, namely litigation and arbitration services, sometimes with an unhealthy dash of over-lawyering and escalation? In theory, all dispute resolution stakeholders should be aligned, but what interest do law firms that earn their fees through adjudicative proceedings have in helping settle cases or in promoting mediation?
I would suggest that the answer is simple – lawyers are bound by law and codes of professional ethics to protect their clients’ interests only. This includes advising our clients on the best method(s) of dispute resolution that fit their concrete situation, needs and goals.
What is more, external counsel seem to be those best positioned to adapt the future of dispute resolution to parties’ evolving needs. In Geneva, a large majority of participants voted that external lawyers were the most likely to be resistant to change in dispute resolution practice, but many also thought that external lawyers, out of all stakeholder groups, had precisely the potential to be most influential in bringing about change.
A plea for diversification of legal practice
Caroline Ming, Executive Director and General Counsel at the Swiss Chambers’ Arbitration Institution (SCAI), expressed her hope in Geneva that the future of dispute resolution would lie in the diversification of legal practice as a reaction to the over-specialisation of years past. She noted that dispute resolution practitioners tend to overspecialise in their own field without educating themselves sufficiently about other areas.
Thus, they each resemble a different type of worker laboring to renovate a house, such as a carpenter, painter or electrician. She wished for more “general contractors” who know about different types of judicial and alternative dispute resolution and can pick out the “workers” and “materials” that best suit the client’s needs depending on the specifics of the case.
Because it is our duty as lawyers to protect our clients’ interests, I agree. No one area of dispute resolution can solve all problems, and litigation, arbitration, mediation, negotiation and other processes each have a role to play. As in most cases, education and increased flexibility in our own ways of thinking can be the keys to change. In this case, change – and better serving our clients’ needs – might involve considering more and other dispute resolution methods than we are normally used to in our practice.
The voting results of all GPC conferences are available here.
Alisa Burkhard is an Associate at the Zurich office of Altenburger Ltd legal + tax, where she practices domestic and international litigation and arbitration and is also a member of the firm’s Russian Desk. She holds a Master of Law degree from the University of Fribourg, Switzerland and a Master of Arts degree from New York University.