The Times They Are a-Changin’

Famous US Folk singer Bob Dylan once sang “For Times
they, they are a-changin’” and if the latest International
Mediation survey results are any guide then the selection
criteria for In House Counsel choosing mediators is also
‘a-changin’. The survey of in-house dispute resolution
counsel from 76 very large international corporations took
place between January and March 2013. The survey
focused on what criteria the In Counsel used when
selecting a mediator and in particular looked into their
needs, attitudes and preferences regarding quality and
standards they expect from their arbitrators and
mediators.

The results highlighted that almost half of the In House
Counsel who responded to the survey don’t consider the
legal expertise of the mediator as a relevant factor when
selecting a mediator. The majority of respondents felt that
the core area of expertise of the mediator was a more
important factor. These findings would tend to support the
commentary last year of Chief Justice of the Supreme
Court of NSW Mr. Tom Bathurst who said of the Australian
experience:

“Within 8 years the traditional or recent forms of mediation
will go by the board. It will go by the board because of the
increased levels of sophistication of clients, in-house
counsel and the legal profession. They know the
law. They will want a commercial outcome and they will go
to a commercial mediator. Arbitration and the courts will
remain on a complimentary basis to resolve disputes.”

It would seem In House Counsel prefer mediators who are
proactive. They want solution generation mediators that
have a certain industry expertise and who do more than
simply facilitate, act as a go between and/or offer a “third
legal opinion”.

Views of respondents were divided on whether mediation
should be compulsory. Half thought external practitioners
were an impediment to finding a settlement to the dispute.
Significant findings of the survey included:

1.When deciding on whom to select as a mediator only
56% of respondents relied upon the mediator having
experience as a lawyer whilst a further 38% were neutral
on the subject;

2. 85% relied upon the mediator having expertise in the
core issue of the case when determining whom to select;

3. 88% of respondents relied upon independent verified
feedback from users when deciding whom to use as a
mediator;

4. Only 48% surveyed felt that mediation should be a
compulsory procedural step in the conduct of all
commercial disputes in both litigation and arbitration whilst
37% felt it should not be compulsory;

5. 77% surveyed felt mediators should not be purely
facilitative but adopt a pro active idea-generating role,
including proposing solutions and settlement options;

6. 48% of respondents stated that outside lawyers were
often an impediment to the mediation process. A further
38% were neutral. Despite the seeming lack of value they
perceived in external lawyers role in mediation 78% would
rely upon the views of law firms and other advisers as to
their recommendations on which mediator to use; and

7. 83% sought evidence that the mediator’s competency
had been independently assessed; and

8. 80% expected their litigation counsel to be trained in
mediation advocacy.

The big take away from the findings are that In House
Counsel (in North America and Europe at least) are
looking beyond the traditional stereotype mediators – the
ex judges and lawyers who were first to dominate the
mediation industry– and are increasingly preferring
mediators with more expertise in the industry to which the
dispute relates and who are proactive in generating
solutions based upon that expertise.

So maybe Dylan’s word’s were true when he sang:

And the first one now

Will later be last

For the times they are a-changin’

The survey can be found at http://imimediation.org.

                       

Tony Dempsey

Anthony Dempsey began his career specialising in banking litigation with national law firm Clayton Utz in 1990. Tony was the founding President and CEO of the Rugby Union Player’s Association (‘RUPA’) in 1995. He negotiated and secured on behalf of its members (the Wallabies and Super Rugby players) in 1997, 2001… MORE >