In Conversation With Michael McIlwrath

Mike

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 or, in some cases, may not be used at all.

It is also important to develop an ear for listening to what the “parties” want, i.e. those they represent in negotiations or dispute resolution. This has always been true, and one of my law school professors used to say that understanding a client’s interests, such as understanding how their business operates (in the case of commercial clients), is the most important thing a lawyer should do.

What is different today is the increasing sophistication of the clients, and their ability to distinguish a lawyer who understands them from a lawyer who is just doling out the standard practice applied to all clients. The need to understand the parties and their interests applies to everyone involved in negotiation and dispute resolution, not just the lawyers.

What are the three biggest challenges that people face in their negotiations and conflicts?

I’ve had the honour to chair the Global Pound Conference, a multi-stakeholder discussion sponsored by the International Mediation Institute on the future of access to civil justice that is taking place in 25 cities around the world. In addition to being a discussion, the conference has been a data collection exercise, with stakeholders providing their views on the current challenges in dispute resolution and what needs to change and who should change them.

One thing that has struck me from these discussions has been the almost universal call for more guidance and flexibility of process at the outset of disputes. There is a sense that parties get channelled into procedures that may not be optimal for their disputes. I’m not sure how exactly things should change to accommodate this desire, as parties always want predictability of their disputes, and I sense some tension may exist there. But there is clearly a desire for improvement here.

I can list two other challenges that come up frequently in my own job.

The first is the difficulty of establishing a clear and achievable objective. Even large companies are made up of individual employees who must make decisions that are ostensibly over large sums of money, which ought to be straightforward. Or at least that’s what you would think. But individuals play roles in stories of contracts that did or did not go awry, relationships that went askew, and emotions that run high and colour how people perceive the other party and the issues. So just getting people to agree on a reasonable objective can often be the biggest challenge.

The second is overcoming self-deception, which will often not be possible given our inability to control or even appreciate how self-deceived we are let alone influence the self-deception in others.

This poses many challenges for people like me who counsel parties who may end up in formal dispute resolution if they do not resolve their conflict, not the least of which is that those who are deeply self-deceived often appear, incredibly, to be more effective in negotiation. Unfortunately, when they do not satisfy their delusions in the negotiation, which is a frequent occurrence, the same delusions push them into a formal, and often expensive, dispute resolution process.

What can people do to effectively overcome such challenges?

There is a simple but honest answer to the challenges that I listed above: preparation.

What will make you stop and say: “Wow, that person is a good negotiator/mediator”?

On this, I can actually answer with some expertise, because I’ve been privileged to participate in mediations conducted by truly great mediators in various countries over the years. They were different in many ways, but they also had shared some key characteristics. One thing they all shared was that they did not treat the present dispute like the last one that they just did, and they did not feel bound to follow a particular process just because that’s how things are usually done in a particular place or industry.

There is one German mediator with whom we have had at least four mediations of very large, international commercial disputes over the past 10 years. In looking at any of those mediations, you could not predict how the others would take place. Like other great mediators I’ve encountered, he adapted his style and the mediation to fit the parties and the particular dispute.

At the most recent mediation, one of the hardest and most complex cases we’ve had in the past several years, I asked the opposing party’s general counsel what he thought about the process. It was his first mediation experience, and he said, “We are going to require mediation for all of our cases now!” Obviously, not every mediator is capable of generating that kind of enthusiasm, which is why it’s important to share best practices.

The second thing these great mediators did was to convey a sense that they were engaged in the dispute, not simply that they were engaged for a day. They genuinely want the parties to find a resolution, and the parties will not want to disappoint them. Unfortunately, I’ve also experienced many mediators – too many – who instead really do not convey a sense of presence in the dispute. They show up, punch the clock, do their usual thing, and if the parties do not settle it’s not their fault.

Is there a question that we should be asking but have not asked?

Yes! Why is the Singapore International Dispute Resolution Academy so important today? Given the challenges that we are facing in both domestic and cross border negotiations and dispute, another question is, how is it possible the world did not already have a Singapore International Dispute Resolution Academy before now?

Interviewed by the SIDRA team.

This interview was conducted by the Singapore International Dispute Resolution Academy (SIDRA) for their interview series PERSPECTIVES and was originally published on the SIDRA blog. Please find the original version here.

Michael McIlwrath is a faculty member of the Singapore International Dispute Resolution Academy and the Global Chairman of the Global Pound Conference.