In Conversation With Michael McIlwrath

Michael McIlwrath, Global Chief Litigation Counsel for GE Oil & Gas, speaks to the Singapore International Dispute Resolution Academy about global trends, key challenges, and the future of dispute resolution.

From your perspective which global trends are shaping the field of negotiation and dispute resolution?

For an in-house lawyer who deals daily with issues of dispute resolution and negotiation, I see these fields remaining as two very separate disciplines. One trend we are not seeing is the intersection between the two fields of dispute resolution and negotiation – i.e. the “adjudicative” fields of dispute resolution, court litigation and arbitration are not acknowledging the many developments that we are seeing in all aspects of negotiation, from insights on decision making to teaching people to be better negotiators.

That said, among all forms of adjudicative dispute resolution, international arbitration currently stands out. It is undergoing a period of change to adapt to user demands for efficiency, transparency, and competency, which is the most rapid that I’ve seen in my professional lifetime. We have seen more changes in the rules and culture of international arbitration in the past two years than in the previous 20. This trend is important because it shows that dispute resolution services (not limited to arbitration) are capable of rapid evolution to meet market demands.

From my perspective, the non-adjudicative forms of dispute resolution, principally mediation, have been generally good at incorporating developments in decision making and science. There is, of course, a lag in how quickly new information can be assimilated into practices and resistance from some mediators who claim to be more artists than professionals. But the trend towards professionalisation appears inexorable.

In conjunction with efforts to reduce court back-loads, many countries have introduced regulatory frameworks to govern the practice of mediation, standards of quality, and licensing and accreditation schemes. This is a huge benefit to users, and provides a robust framework to support the growth of mediation. And this trend towards a more structured regulatory support is one of the reasons we are finally seeing mediation growing as much as it is today.

An additional trend, and one that is truly heartening, is the level of interest among young practitioners in mediation and other innovative forms of dispute resolution. The enthusiasm is palpable. The new generation will revolutionise the field of dispute resolution, if my generation and the one before me do not inhibit them. Emerging negotiation, mediation, and arbitration competitions all over the world are evidence of the enthusiasm in this field. In fact, many face the problem of over-subscription as they simply cannot accommodate all the students who want to compete and learn.

It’s an exciting time to be a practitioner in any of these fields.

What can negotiators and dispute resolution practitioners do now to position themselves well for the future?

Probably the most important thing will be for negotiators and dispute resolution practitioners to equip themselves with the right learning tools to adapt to change and stay ahead of the curve. A professional in any field of dispute resolution today should expect that many of the practices they employ today will either be radically different in ten years