Data Analysis

What’s A Pound Worth? The Conversation Continues…

What’s A Pound Worth? The Conversation Continues…

Since 2001, the Union Internationale des Avocats World Forum of Mediation Centres (UIAWFMC) has brought together the best commercial dispute resolution professionals and representatives from ADR centres around the world. Its purpose is to foster the exchange of views on the development of ADR (with a focus on mediation), enhance knowledge, consider emerging best practices and learn from other cultures. The Forum takes place every 9 months in a different international venue. Read more

Posted by Emma-May Litchfield and Danielle Hutchinson in ADR, Data Analysis, Dispute Management, Mediation, 0 comments

From Conference Series To Global Community – What’s Next For The GPC?

eric-didier-271433.jpgAs the Global Pound Conference Series 2016-17 draws to a close,  it is time to take stock and consider how both the data analysis and conversations from each event might inform the future of Dispute Resolution.

As an academic, I am wary to avoid drawing conclusions before the final analysis is complete; but as contributor to the series from design to data analysis , I would like to share some of the themes I see emerging from this ambitious project.

Read more

Posted by Emma-May Litchfield in Access To Justice, ADR, Data Analysis, LOC Coverage, Mediation
GPC Hong Kong – A Mandate For Change

GPC Hong Kong – A Mandate For Change

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The Global Pound Conference event in Hong Kong saw over 200 delegates assemble to identify trends and cultural preferences in commercial dispute resolution. Hong Kong’s Secretary for Justice, Chief Justice and Solicitor General headlined the conference, underlining the government and judiciary’s high engagement with the initiative.

Hong Kong is a global financial centre and leading regional dispute resolution hub. It enjoys a strong, independent judiciary as well as world class international arbitration services. Mediation and other forms of ADR are heavily supported by a myriad of institutions. Although not a compulsory requirement, mediation in the context of civil litigation tends to be interpreted by commercial parties as a mandatory step. 

Against this backdrop, delegates voted at the GPC Hong Kong as follows:

  • When it comes to the choice of dispute resolution process, users and their advisors put far more store in their familiarity with the process and the outcome sought, rather than relationships, industry practice or saving costs.
  • Financial remedies are overwhelmingly the most important outcome for all involved in commercial dispute resolution. Preserving relationships or achieving action-based outcomes are far less significant.
  • The rule of law is seen as the most important factor in achieving dispute resolution outcomes, ahead of consensus.

GPC Hong Kong infographicClick here to download the full infographic summarising the Hong Kong data 

Herbert Smith Freehills‘ (HSF) Greater China Managing Partner, Julian Copeman, who moderated the Hong Kong event, noted that some voting trends differed from other GPC events, particularly the one in Singapore. For example, when weighing up the benefits of financial outcomes and preserving relationships, all stakeholders viewed financial outcomes as far more important.

Does this translate to a vote for ‘business as usual’ processes like litigation and arbitration in the territory? Is Hong Kong an unsophisticated jurisdiction lacking confidence in less adversarial process options? It is not as simple as that:

  • While delegates voted for familiarity and financial outcomes governed by the rule of law, users said efficient processes driven by collaboration were also key.
  • Add to this a preference for combining adjudicative and non-adjudicative processes, and we are looking at a more sophisticated user profile.
  • Perhaps most interestingly, users saw mediation primarily as a way of gaining better information about the case, rather than a cost-saving device. This suggests a degree of high sophistication – seeing ADR as a means of gaining intelligence and honing the issues for future settlement.

Clients want their advisors to collaborate with them, they don’t necessarily want lawyers to be advocates in the traditional sense. Instead, lawyers need to think more about combining processes, rather than aiming for a binary decision between adversarial processes like litigation and arbitration. In light of users’ comments, it would also be advisable to redefine mediation ‘success’ to include fact-finding.

The technology debate

On the role of technology in resolving disputes, stakeholders were both wedded to the status quo, but open to change:

  • Delegates said they do not currently regard technology as a tool to enhance commercial dispute resolution.
  • However, they agree that the need for efficiency (including through technology) will have by far the most significant impact on future policy-making for commercial dispute resolution.

How technological innovation can be embedded in traditionally conservative professions like law is an important question. As our previous research on ADR has highlighted, the legal advisor sits at the centre of dispute resolution processes and therefore is often best positioned to influence change. At the GPC Hong Kong, like many other events, external lawyers were judged to be the most resistant to change. This paradox is an impediment to change, particularly when looking to improve processes (like technology), that can drive efficiency in dispute resolution.

May Tai, Partner at HSF in Hong Kong, stated in terms of technology, the option of staying with the status quo “does not exist”. She also pointed out that it is not appropriate to bring in internal or external technology specialists on a very simple or low value case – although there may not be another option available in complex and/or high value cases.

Tai’s collegue, Justin D’Agostino, HSF’s Global Head of Disputes, added: “With technology advances, the landscape for dispute resolution will be unrecognisable over the next 5-10 years. Hong Kong is well placed to benefit from the innovation technology affords but we must act now.”

Enforcement issues

Users, advisors and academics thought that the enforcement of settlements (including those reached through mediation was more important than making processes like mediation compulsory in Hong Kong. This is consistent with other GPC events. Of course, a process is only worthwhile if the outcome can be enforced.

But in practice, problems of enforcement of mediated settlement agreements are highly rare. In fact, at the Hong Kong event, panellists could not point to any practical experience of this. That enforcement of mediated settlement agreements could help optically to evidence the status and value of mediation, is perhaps the key point (see our commentary here).

Driving change

As with many GPC events, there were elements of high sophistication and a willingness to innovate among delegates in Hong Kong, but also conservatism and a reluctance to embrace change. It is clear that in Hong Kong, the tools and institutional support is in place to provide users of commercial dispute resolution with multiple high quality process options.

However, the GPC has highlighted that stakeholders are not always embracing those tools. In particular, despite its broad support, parties and lawyers alike remain reluctant to attempt ADR. The Hong Kong event has prompted well-needed reflection.

Commenting on the Hong Kong event, Alexander Oddy, global head of ADR and conference MC, concluded: “Hong Kong really captured my imagination. We had amazing audience engagement showing how receptive people were to new ideas. They have a set of dispute resolution tools that are known and work, but there is a clear willingness to look for new and constructive ways to resolve conflict.”

Written by Anita Phillips.

This is an adapted version of the original article published on HSF website, for the original please click here.

Anita Phillips.jpgAnita Phillips, Professional Support Consultant at Herbert Smith Freehills, has over 13 years’ experience in all forms of contentious work. She specialises in thought leadership initiatives, and has been a core member of the firm’s disputes practice since 2003. She has been central to the firm’s major ADR research initiatives including The Inside Track 2007 and the Global Pound Conference 2017. In 2015, she led the Hong Kong office’s client research on mediation in Hong Kong, which was shortlisted for an FT Innovative Lawyer Award. Anita devised and edits the firm’s ADR in Asia Pacific guide series and has led on various other texts including the 4th edition of Kendall, Freedman and Farrell on Expert Determination by Sweet & Maxwell (shortlisted for CEDR’s best publication award 2008).

 

Posted by Anita Phillips in ADR, Data Analysis, LOC Coverage, Mediation
International Commercial Arbitration And Mediation: What Does The Data Show?

International Commercial Arbitration And Mediation: What Does The Data Show?

While key elements of confidentiality are important to commercial arbitration and mediation, many aspects of the process are needlessly shielded from transparency, and as a result preclude awareness, understanding and confidence.

Increasingly one sees that greater insight into arbitration and mediation processes is possible without divulging any “confidential” information. Individual institutions including, but not limited to the Hong Kong International Arbitration Center, Singapore International Arbitration Center, and others are sharing helpful information about fees, expenses, and the duration of completed cases.

Now Dispute Resolution Data (DRD) is receiving data from 17 international entities and then aggregating the data by case type (28 different) and seven geographic regions. In this process, each closed international commercial arbitration provides information for up to 100 data fields and each closed international mediation up to 45 data fields. Presently, over 1,000 cases have provided information reposing, in excess of, 40,000 data fields.

Those interested in examining these methodologies with additional data insights include practitioners, insurers and re-insurers, corporate counsel, scholars, administering institutional staff and students.

Data collection

Data from administering institutions may employ different terms, however the process worldwide is quite uniform in its execution. This fact adds significantly to the data collection and reporting processes. [ For example, the basic process includes filing a claim, a reply, briefs, oral hearing, award, with settlement possible, and likely (now confirmed) at least 50% of the time, prior to the rendering of an award.]

The data collected from participating institutions shortly after a case closes enables the data to reflect quite current realities. As well, data over a span of years reveals trends or patterns for results which can inform strategies, clause drafting, discussions with clients, and even budgets with costs and award information, again by individual case type.

Data reporting

In availing commercial arbitration and mediation data, many analytic examples can be cited, including the frequency of the use of discovery tools, including e-discovery, and the success rate of counterclaims by case type. For illustrative purposes, here we display three widely different instances of data reporting. They are the mediation success rate by case type and geographic region:

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The growth in claim amounts for all cases during the period 2009-2017:

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And a graph showing profoundly the universality of arbitration detailing parties from 136 nations engaged in arbitrations administered in 17 arbitral institutions:

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The use of data in international commercial arbitrations and mediations, measured transparency, and the opportunity for new scholarly research has arrived!

Written by Bill Slate and Debi Slate.

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Bill Slate is the Co-Founder, Chairman and Chief Executive Officer of Dispute Resolution Data (DRD). Prior to co-founding DRD, he was the President and CEO of the American Arbitration Association/ICDR for two decades.

 

 

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Debi Slate is the Co-Founder, President and Chief Operating Officer for DRD.  She heads up all operations related to the advancement of DRD as a global resource to aid in the transparency of international arbitration data.

Posted by Bill Slate and Debi Slate in ADR, Data Analysis
European Disputes Trends

European Disputes Trends

European flags in BrusselsToday is Europe Day! What better way to celebrate than to look at the dispute resolution trends in the recently published rule of law data across the European Union. This year marks the 60th anniversary of the historical ‘Schuman declaration‘ and the existence of the Treaty of Rome – which led to six decades of peace and integration in Europe.

At a time where media attention has primarily focused on the challenges faced in the region, there has at times been little focus on the many areas of progress within the European Union. However, following the recent French elections, there is fresh hope within the EU for dialogue and reconciliation among existing Member States, although there is still much work to be done.

Rule of law in the EU

One of the key functions of EU law is to enable a degree of harmonisation of laws across Member States, not only in substance but also in ensuring a certain standard. Last month the European Commission published the 2017 EU Justice Scoreboard, giving a comparative overview of the efficiency, quality and independence of different justice systems in the EU. The report mainly focuses on litigious civil and commercial cases as well as administrative cases, and the identifies three main elements of an effective justice system – efficiency, quality and independence.

“The 5th edition of the EU Justice Scoreboard confirms that effective justice systems are essential to build trust in a business and investment-friendly environment in the single market” said Vĕra Jourová, EU Commissioner for Justice, Consumers and Gender Equality.

The Scoreboard also presents data on the safeguards in place in the different Member States to guarantee the judicial independence of judges. This reflects the strong importance of rule of law for the EU.

Jourová added: “I encourage Member States to ensure that any justice reform respects the rule of law and judicial independence. This is key for citizens and businesses to fully enjoy their rights.”

Alongside the annual comparative overview, the Scoreboard provides country-specific assessments carried out through bilateral dialogue with the national authorities and stakeholders concerned. This assessment may lead to country-specific recommendations on the improvement of national justice systems.

ODR and ADR trends

The Scoreboard showed a number of significant developments in regards to alternative dispute resolution (ADR).In contrast to previous years, the voluntary use of ADR methods has been increasingly promoted and incentivised in all Member States (see Figure 30, below).

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Figure 31 shows the number of complaints submitted through the European online dispute resolution (ODR) platform. This web-based multilingual tool is aimed at consumers and traders who have a contractual dispute over a product or service bought online and wish to find a solution outside of court, and has been available to the public since 15 February 2016. The platform allows parties to a dispute to submit their disputes online through the platform.

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The high number of complaints submitted through the newly established ODR platform shows the willingness of consumers to turn to ADR when resolving their disputes, this is especially relevant in relation to cross-border disputes which make up a substantial share of all disputes submitted to the ODR.

The Scoreboard uses a number of different sources of information. The main sources of data are provided by the Council of Europe Commission for the Evaluation of the Efficiency of Justice. Other sources of data include European networks such as the European Network of Councils for the Judiciary and the Network of the Presidents of the Supreme Judicial Courts of the EU, the Council of Bars and Law Societies of Europe and various committees in specific areas of EU legislation.

Please click here for the full report.

Figure 30 and 31 have been taken directly from 2017 EU Justice Scoreboard.

Written by Natasha Mellersh.

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Natasha Mellersh is the editor of the GPC Blog, she is currently also pursuing an LLM in Public International Law at Leiden University in the Netherlands. She was previously the online editor of CDR Magazine and a senior editor at LexisNexis.

Posted by Natasha Mellersh in Data Analysis
Ten Takeaways From The GPC Data

Ten Takeaways From The GPC Data

summary of the aggregate data from seven GPC events (Singapore, Mexico City, Lagos, New York, Geneva, Toronto and Madrid) was recently published on the GPC website. The Mediator Academy has distilled the report down into 10 interesting takeaways. The infographic focuses on the key areas – party desires, needs and expectations, current practice, promoting access to justice and ways in which to improve commercial dispute resolution.

GPC Series - 10 Takeaways

The Infographic was produced by the Mediator Academy, to view the original post please click here.

Posted by Mediator Academy in ADR, Data Analysis

Ambitious Goals And Global Plans: Analysing The GPC Series Data

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The cumulated data of the first seven events (in Singapore, Mexico City, Lagos, New York, Geneva, Toronto and Madrid) of the Global Pound Conference Series that took place in 2016, shows that the preferences and priorities of parties involved in commercial and civil disputes differ from what providers perceive and offer. In other words, there are gaps between the “demand” and “supply” sides in the dispute resolution market.

My paper gives a preliminary view of the aggregate data and how the demand and the supply sides may be aligned. It also discusses how to improve the effectiveness and efficiency of dispute resolution processes, and concludes with a look at whether organizing the GPC Series is worth the effort.

The data analysed highlights the gaps between what parties want and what providers prioritize. For example parties emphasis on financial outcomes in commercial dispute resolution processes, parties preference that advisors should collaborate with them whereas advisors believe they should speak or advocate for the parties, parties needs for efficiency for determining commercial dispute resolution processes whereas advisors believe that their own advice is more important factor than efficiency.

More importantly, it also emphasises alignment across stakeholders on how these gaps can be addressed to evolve the dispute resolution marketplace. The data indicates need for guided choice based on type of dispute, inclusion of pre-dispute or pre-escalation processes, introduction of mixed modes/tailored processes, continued education in business and law schools on dispute resolution.

While it is likely that these themes and trends may change as the GPC Series progresses, it is also possible that the first seven events are an accurate predictor of what will come next.

Written by Mansi Karol.

To access the full paper entitled “Ambitious Goals and Global Plans: The Global Pound Conference Series” please click here.

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Mansi Karol is an Indian qualified attorney, she is currently pursuing an LLM in Dispute Resolution and Advocacy in Benjamin N. Cardozo School of Law in New York and will be graduating in May 2017. Her experience ranges in international law, commercial law and alternative dispute resolution. She has also done an LLM from Queen Mary University of London.

Posted by Mansi Karol in ADR, Data Analysis
It’s A Numbers Game: Diversity And Inclusion In International Dispute Resolution

It’s A Numbers Game: Diversity And Inclusion In International Dispute Resolution

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As a largely private mechanism for dispute resolution, international commercial arbitration has been shielded from scrutiny in relation to the composition of its arbitral tribunals. For years, the arbitration institutions did not publish data in relation to the gender, nationality or race of arbitrators appointed to hear disputes. However, this situation is changing. Continue reading →

Posted by Lucy Greenwood in ADR, Data Analysis