Business Conflict Blog by Peter Phillips
A group of very prominent stakeholders on commercial dispute resolution met at Cardozo Law School on September 12, 2016, to conduct the New York City session of the Global Pound Conference. Of all the many institutions and volunteers who were responsible for this success, the International Mediation Institute takes the foremost position in realizing the vision of its founder, Michael Leathes.
The New York participants included representatives of users of ADR (companies and individuals), advisers to those users (lawyers and law firms), providers of adjudicative or non-adjudicative services (ADR organizations and solo practitioners), and other “influencers” (including academics and other experts). These people participated, not just attended, because they periodically responded to “core questions” (posed to participants in all 40 conferences in 32 countries) and other more local and specific questions. These responses were made available to the participants in real time, and in the aggregate will yield robust data reflecting regional as well as global insight into where we are and where we might progress.
This conference addressed the resolution of business disputes. Specifically excluded were family, consumer, criminal or other types of disputes.
Among the welcoming speakers, Laurence Shore of Herbert Smith Freehills cautioned humility and modesty both from advocates (who may obstruct resolution through behavior they defend as “zealous”), and neutral mediators and arbitrators (who do well to remember that they almost always understand less than they think they do — indeed, in my own experience, less than anyone else in the room — about the disputes).
The first two panels sought perceptions of the current status of ADR choices and use by end-user parties. The first panel addressed the participants’ understanding of party needs and expectations in commercial dispute resolution – on whose advice ADR is chosen, with what expectations and with what business goals in mind. Two outcomes of participant voting particularly caught my eye. When asked whether concern for attorneys’ own fees had an influence on their advice that their clients engage in ADR processes, only 23% of users and 17% of attorneys – that is, those actually giving and getting the advice – responded that it was. By contrast, 44% of mediators, 44% of academics, and 37% of arbitrators thought that attorneys’ advice was colored by a concern for their fees. This seems to suggest that ADR participants other than counsel and their clients harbor skepticism of whether parties are being advised in a disinterested, professional manner. It also seems peculiar that folks who neither gave nor received confidential legal advice had such a sure view as to what that advice reflected.
(Percentages reflect weighted choices of importance, with 1st choice getting three points, second two, and 3d one – so things don’t add up to 100%.)
Another interesting result of this “user behavior” panel dealt with the relative importance that preserving relationships had in user choice of ADR. Parties and attorneys rated it the lowest of the six available selections, at 7-8%. By contrast, mediators thought that users valued relationship preservation much higher, at 20%. The conclusion might be that mediators think they are doing something that (a) they’re not doing; (b) the users themselves don’t seek; and (c) neither the users nor their legal advisers value.
The second panel addressed party expectations and current practice – what outcomes users value the most in the process and outcomes of ADR. Here a surprising level of unanimity of perception was revealed in certain propositions. Pretty much everyone understood that the responsibility for advising a party of the options and consequences of resolution processes lay with inside and outside counsel. Similarly, pretty much everyone (including users, happily) understood that the main things that users get from mediation are control of the outcome and a reduction of cost.
More nuanced results arose when the group was asked how they understood outcomes were determined. Both parties (79%) and mediators (77%) said that outcomes reflected consensus, a voluntary shared decision. By contrast, attorneys relegated that idea to a far lower raking (37%) and thought that outcomes reflected a concern for the rule of law (76%). Parties acknowledged that legal concerns were important (63%) but mediators seemed not fully to appreciate the role that legal concerns take in framing commercial outcomes (49%). And remember that we’re talking here about the mediators’ own customers.
Perhaps the most helpful perception I got from the whole conference was a better understanding of the ways in which what mediators think they’re doing, contrasted to what users experience them doing and expect them to do.
The third panel looked forward, asking which stakeholders were most likely to obstruct, or to bring about, change in commercial dispute resolution. Two outcomes of the voting were particularly noteworthy. First, external lawyers for the parties were uniformly identified as the main source of obstruction. This was contrary to my experience; I have regularly found counsel for parties in mediation to be highly competent and supportive. They also, of course, are the ones who employ me, exemplifying profoundly astute powers of observation.
Various stakeholders were identified as likely to prompt positive change in methods of resolving party disputes — except for the parties themselves! The parties were the only group who placed themselves in the primary position; everyone else had widely divergent views, none of them prominently naming the parties. That is to say, the people who had the disputes were the only ones who thought that they were best positioned to improve ways to resolve them. That outcome seemed either humorous or patronizing. Or both?
The organizers of this fabulously successful program are to be congratulated, particularly the global project manager Jeremy Lack. I have never understood why the conference series was subtitled “Access to Justice,” inasmuch as ADR is an attempt to circumvent — not to access — formal, public systems of justice. Nor have I have thought of ADR as particularly accessible in any event. Mediation and arbitration are for parties with the money to buy them, whereas the courts are supported by the taxpayer and access is (relatively) free. And, in practice, very little of the discourse at the actual conference related to this topic.
But quibbles be damned. Many, many more conferences are scheduled around America and around the world over the next several months. See the schedule here.
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