The IMI/CCA/Strauss Institute Mixed Mode Taskforce have just published a series of articles on mixed mode dispute resolution in the New York Dispute Resolution Lawyer. These articles are reprinted with permission.
The Mixed Mode Task Force is a combined effort by the College of Commercial Arbitrators (CCA), the International Mediation Institute (IMI) and the Straus Institute for Dispute Resolution, Pepperdine School of Law. The term “mixed mode” refers to combinations of different dispute resolution processes (e.g., adjudicative processes, such as litigation and arbitration with non-adjudicative processes, such as conciliation or mediation). Well known examples are MED-ARB (mediation follow by arbitration), ARB-MED (arbitration followed by mediation), Dispute Resolution Boards and MEDOLOA (mediation followed by last-offer arbitration).1 They have existed for many decades, if not centuries. However, process combinations have varied greatly depending on local cultural influences, from country to country, within countries, and within different types of practices. The Task Force was set up in April 2016 to generate discussion, dialogue and deliberation among dispute resolution practitioners and thinkers from different cultures and legal systems regarding how mixed modes might better be used in both public and private, domestic and international spheres to improve access to justice and stimulate faster, cheaper and better ways of reaching resolution.
The Task Force’s mission is to:
- Promote understanding of and share expertise on mixed mode scenarios across diverse groups and cultures;
- promote partnering among diverse organizations focused on the management and resolution of conflict;
- expand the use of dispute resolution processes tailored to conflict, including measures that manage, resolve and reduce potential escalation of conflicts; and
- facilitate research, investigations and discussions regarding the management and resolution of disputes and foster educational initiatives regarding best practices.
The Task Force is organized into seven working groups, each comprising 15-34 experts from around the world having broad experience in different dispute resolution practices, many of whom already have mixed mode practices. Each working group has at least two co-chairs. They are organized in conceptual chronological order as follows:
- Working Group 1: Upstream conflict management processes (e.g., dispute resolution clauses including
tiered/stepped processes) (Co-Chairs: K. Paisley (BE), J. Player (GB) & T. Stipanowich (U.S.))
- Working Group 2: Neutrals facilitating tailored process design (evaluative and non-evaluative) (CoChairs: L. Kaster (U.S.) & J. Lack (CH))
- Working Group 3: Mediators using non-binding evaluations and proposals (Co-Chairs: K. Fan (HK)
& V. Fraser (CA))
- Working Group 4: “Arbitrator Techniques and their (Direct or Potential) Effect on Settlement”(E. Sussman (U.S.) & K.P. Berger (DE))
- Working Group 5: Neutrals switching hats (M. Mironi (IL) & T. Stipanowich (U.S.))
- Working Group 6: Finality and enforceability of facilitated and arbitrated “Mixed Mode” outcomes
(K. Paisley (BE) & J. Player (GB))
- Working Group 7: Future directions: Interaction between mediators and arbitrators (D. Masucci (U.S.)
& D. Nigmatullina (RU)).
The Task Force ’s co-chairs work closely together. All Task Force work product is public, and its documents
and reports can all be found at: https://imimediation.org/about/who-are-imi/mixed-mode-task-force/. Its
terms of reference can be found at https://imimediation.org/download/184/mixed-mode-task-forcedocuments/40716/memo-on-the-task-force-and-project.pdf.
The working groups approach is guided by five key drivers:
- Self-determination; and
While the primary focus is on disputants as users of dispute resolution processes (e.g., business owners or executives and in-house counsel), its target audience includes dispute resolution practitioners and service providers (e.g., judges, arbitrators, conciliators, mediators and ombudspersons and ADR institutions), advisors (e.g., advocates, external counsel and other consultants), and other stakeholders.
The Task Force ’s origins can be traced back to a two-day meeting organized by a group of senior business leaders, corporate counsel, conflict management professionals and other experts that took place at Pepperdine University in September 2014 on the theme “Reimagining Corporate Conflict Management.” The group recognized that although many companies have worked to improve and streamline conflict management through various “alternative” dispute resolution methods, those practices are pursued irregularly and have not fully realized their promise to reduce costs or fully serve disputants’ interests. While it was appreciated that adjudicative and non-adjudicative processes can be compatible, they are seldom combined in practice and, when they are, little experience in the field is shared. For example, some bar associations and ADR providers have separate groups or secretariats for arbitrators and mediators, and there are difficulties at times in combining processes. For that reason and others there was little information or evidence of arbitrators and mediators ever working together in teams. One of the ideas was to seek data and statistics to capture what has been working effectively. The group also wanted to explore avenues toward effective dispute resolution.
The group also found inspiration in the Global Pound Conference (GPC) series, an idea launched by Michael Leathes, the co-founder of IMI. The GPC was a bold experiment. Using a specially developed application, it sought to collect answers to twenty core multiple choice questions (and a series of additional open text questions) from experienced stakeholders in the field of dispute resolution in 24 countries and 28 cities around the world, with an additional international online survey. The same questions were posed at each meeting. All answers were analyzed and tracked according to how different groups of stakeholders responded to them. On average, 4,490 experienced users and providers of dispute resolutions services answered these questions, divided into five groups: (1) parties (15% of participants); (2) advisors (26% of participants); (3) adjudicative providers (14% of participants); (4) non-adjudicative providers (31% of participants); and (5) influencers (15% of participants). Each of these questions was voted upon and the results produced during the live meetings and discussed in four sessions within each meeting. The first session focused on access to justice and what parties want, need and expect. The second session focused on how the dispute resolution market is currently addressing these wants, needs and expectations. The third session focused on the gaps between what parties wanted and what was being provided, looking in particular at obstacles and challenges. The fourth session focused on how to promote and provide better access to justice taking the first three sessions into consideration: what action items could be considered and by whom. The results of the GPC series can be found online.2
A report summarizing the findings of the GPC series was published in 2018, citing four key findings:
- Efficiency is the key priority of the parties when choosing dispute resolution processes.
- Parties expect greater collaboration between advisors to resolve disputes.
- There was a growing interest in the use of predispute protocols and Mixed Mode dispute resolution processes; and
- In-house counsel are the key agents to facilitate and drive organizational changes (whereas external lawyers seemed to be the primary obstacles to change).3
The GPC results on mixed modes processes were of particular interest and galvanized the Task force ’s energies. Originally comprising six working groups, it altered its internal organization and created the seven working groups identified above in February 2020. The GPC answers reflected a lack of interest in focusing on the use of adjudicative processes on their own (i.e., litigation and arbitration). This was the least popular option in response to a question on what processes and tools should be used to prioritize commercial dispute resolution in the future (GPC Core Question 3.2). The most popular response was preventive pre-dispute or pre-escalation processes (a 51% rating) followed by combined mixed mode processes (a 45% rating). In terms of the role of service providers, the GPC data also indicated a universal belief, across all stakeholder groups, that parties initially do not have a preference regarding what type of dispute resolution processes to use to resolve their disputes, and that they wished to obtain more guidance from providers early on regarding optimal ways to resolve their disputes, including more bespoke processes and combined processes (GPC Core Question 1.4, which had a 61% rating).
We hope this special section of this journal on the Task Force and the summaries of work to date by its working groups will help to advance discussion in this field, which continues to be of growing interest. We encourage all readers to contact the authors of each report in this publication (who are the co-chairs of their respective working groups) to share their thoughts and any experiences regarding mixed modes. All feedback is welcome. We hope to ultimately generate sufficient information regarding what practices already exist to be able to suggest some possible preliminary guidelines or checklists for users and providers interested in using mixed mode processes in the future.
- For articles on different forms of mixed mode processes, see, https://imimediation.org/resources/background/hybrid-dispute-resolution-processes/.
- For more information about the GPC series, see https://imimediation.org/research/gpc/gpc-about/. The raw data are available at: https://imimediation.org/download/907/aggregated-results/35505/final-cumulated-voting-results-march-2016-september-2017.pdf. For detailed analyses by regions, see https://imimediation.org/research/gpc/series-data-and-reports/ and https://imimediation.org/research/gpc/series-data-andreports/#905-909-reports, especially for data collected in North America, which indicated notable differences between Austin, Baltimore, Los Angeles, Miami, New York and Toronto. An overall report analyzing the North American data sponsored by AAA/ICDR can be found at https://imimediation.org/wp-admin/admin-ajax.php?juwpfisadmin=false&action=wpfd&task=file.download&wpfd_category_id=909&wpfd_file_id=48220.
3. A copy of this final report discussing these four findings can be found at: https://imimediation.org/download/909/
For a list of all working group members please go to: https://imimediation.org/mmtf.
Jeremy Lack is an attorney and ADR Neutral in private practice. He is a member of IMI’s Independent Advisory Committee. Laura A. Kaster is the Chair of the NYSBA Dispute Resolution Section and a Co-Editor-in-Chief of this journal. She and Jeremy are the co-chairs of Working Group 2.
This article is reprinted with permission from: New York Dispute Resolution Lawyer, 2021, Vol. 14, No. 1, published by the New York State Bar Association, One Elk Street, Albany, NY 12207.