LOC Coverage

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.

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Posted by Emma-May Litchfield in Access To Justice, ADR, Data Analysis, LOC Coverage, Mediation
The Global Pound Conference London – The End Of The Beginning

The Global Pound Conference London – The End Of The Beginning

On October 29, 2014, 150 of us, representing many stakeholder groups from more than 20 countries, attended an important convention held in London’s beautiful Guildhall. Called ‘Shaping the Future of International Dispute Resolution’ the convention was inspired by the energetic and far-sighted Michael Leathes and was organised by the International Mediation Institute (IMI), which he pioneered and several other bodies.

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Posted by Rosemary Howell in Access To Justice, ADR, Introductory Guide, LOC Coverage, Mediation

The London GPC – Time For Change

marlon-maya-44935.jpgLast week’s London event marked the grand finale of the GPC Series, which has taken place on six continents and 29 cities since April 2016, collecting groundbreaking data on the behaviour and perceptions of stakeholders in dispute resolution across the globe. Taking place in the historical Guildhall building, built upon centuries of ‘dispute resolution’ above the Roman amphitheatre – where conflict was perhaps resolved in a more brutal way than today.

The event began with an introduction by online dispute resolution advocate Lord Justice Briggs, who has consistently pushed for technological reforms in the courts of England and Wales, especially in regards to resolving disputes. In addition Dr Andrew Parmley, Lord Mayor of London (Mayor of the City of London), gave a moving speech on London’s rich multicultural history – stating that London will remain a global city and an international hub for the legal community undeterred by Brexit.

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Posted by Natasha Mellersh in Access To Justice, ADR, Arbitration, Dispute Management, Education, LOC Coverage, Mediation, Negotiation, Technology
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
Notes From The Paris GPC

Notes From The Paris GPC

Paris

The Paris GPC drew a huge crowd, with approximately 300 attendees, and was jam packed with discussions from 8am until 8pm. Taking place during Paris Arbitration Week, with numerous events held across the French capital, there was a strong emphasis on arbitration alongside other ADR mechanisms.

Expertly organised by Diana Paraguacuto-Maheo, Partner at Ngo Jung & Partners, who served as the President of the GPC Paris Organising Committee, it was the biggest GPC event in Europe to date. With speakers and delegates from all stakeholder groups, and from many different countries. Users were especially well represented, making up 24% of all attendees.  

The conference had a slightly different structure to other GPC events, running panel discussions on the Core Questions in the morning and offering a choice of workshops in the afternoon ranging from digitalisation of dispute resolution or optimisation of dispute management, to the role of experts in dispute resolution processes.

Much to discuss

Following some initial technical blips, the event flourished into active debates and discussions, with panelists comparing aggregated data from previous events to key trends in France. A number of issues were widely discussed throughout the day, such as education and cultural aspects of dispute resolution, as well as the role of the courts in promoting mediation in France. 

What was particularly evident throughout the day was the strong interest from the wider legal profession, especially from the French judiciary. There was a wide consensus for enacting more effective policies to further promote ADR, particularly in regards to arbitration – with panelists emphasising the pivotal role of lawyers in developing arbitration and its use. 

Many panelists believed more encouragement from courts, providers and advisors is necessary to promote mediation as an alternative or in combination with other proceedings – as well as the creation of specialist chambers to facilitate these processes. One panelist stressed the need to combine adjudicative and consensual dispute resolution mechanisms on the national level, by stating: “The rule of law and consensus should not be the two extremes of the spectrum, but two sides of the coin.”

Aside from more general support of ADR mechanisms, the need for cultural change on both a national and a corporate and social level was also widely debated.

Mandatory mediation

Another key topic was the use of mandatory mediation clauses – many speakers felt that these would defy the very purpose of mediation. Some felt that the forced nature of such clauses would be ineffective – due to the potential unwillingness of the parties to come to a compromise.

One panelist noted that simply going through the motions before moving on to an adjudicatory process was highly ineffective – stating that the parties must come to the process voluntarily and with the aim of finding a mutual solution. However, others believed it was a good way to introduce mediation into the dispute resolution process as a whole. 

Education and innovation

An issue that came up a number of times was the role of education in widening the use of ADR, with several speakers noting that the promotion of dispute resolution mechanisms is simply not enough. Many panelists spoke of the need for more general training in negotiation and ADR processes in law schools and universities. The emphasis on creating a litigation culture at law school could be at the root of limiting progress in the field, with many law students being unaware of ADR altogether. One panelist noted that young lawyers must be taught how to effectively manage disputes rather than how to fight them. 

Another panelist went further, suggesting that training should start in primary school with a focus on on non-violent communication. Fostering a culture of respect and effective conflict resolution at a young age, which continues at higher education levels could be a key driver in effecting cultural change across entire societies. 

Technology and innovation was also high on the agenda, with afternoon workshops dedicated to discussing digitalisation and dispute resolution of the future. Speakers discussed the growth of online dispute resolution (ODR), as well as the global trend towards the use of consensual dispute resolution mechanisms – issues that will be more widely discussed in Paris again next month at the International Chamber of Commerce‘s ODR Conference on the 12 and 13 June.

High demand

The event showed a growing demand for more constructive debate and engagement within the wider legal community, bringing together all stakeholder groups to identify gaps and facilitate better communication between them. With such a wealth of information, the Paris GPC appeared only to scratch the surface of a much wider debate on culture, efficiency and general development of dispute resolution – something that will take far longer than a day to address. Hopefully for France and other countries, this is only the beginning.

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 Access To Justice, LOC Coverage, Negotiation
The Hong Kong GPC – Mediating Commercial Disputes

The Hong Kong GPC – Mediating Commercial Disputes

Hong Kong harbourThe Hong Kong Global Pound Conference took place on 23 February 2017 and saw over 200 delegates – judges, commercial parties, corporate counsel, arbitrators, mediators, dispute resolution institutions, government officials and academics – come together to identify trends and cultural preferences in a way that had not been possible through previous studies. Continue reading →

Posted by Anita Phillips, Julian Copeman and May Ta in ADR, Arbitration, LOC Coverage

The GPC Enters Its Final Stages

james-padolsey-152010.jpgThe Global Pound Conference is now kicking into high gear, with events scheduled in 16 cities between now and the conclusion on 6 July 2017 in London.

At a time when advances in technology and science are calling into question and pushing the boundaries of all forms of human endeavor, the world’s domestic and international adjudicative systems have remained, for the most part, rooted in practices developed centuries ago. Continue reading →

Posted by GPC Series in ADR, Conciliation, LOC Coverage, Negotiation
Global Pound Conference Berlin

Global Pound Conference Berlin

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The Berlin Global Pound Conference, held on 24 March 2017 at the International Chamber of Commerce in the heart of the capital, was the first I had attended in the series of 39 worldwide events. The conference brought together an effective representation of Germany’s dispute resolution community, with handpicked in-house and external lawyers, institutional representatives, ADR specialists, academics and others, all stakeholders were well represented. Continue reading →

Posted by Natasha Mellersh in LOC Coverage, Negotiation
The Geneva GPC – Does The Future Lie In Mediation?

The Geneva GPC – Does The Future Lie In Mediation?

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On 29 September 2016, various stakeholders from the judicial and alternative dispute resolution (ADR) community – arbitrators, mediators and judges, in-house counsel, external lawyers, policy-makers as well as representatives of arbitral institutions – gathered in sunny Geneva for a lively exchange on “the future of dispute resolution” at the city’s GPC event.

What made the Geneva conference different from previous dispute resolution seminars I have attended was the opportunity for discussion between the heterogeneous stakeholders involved in the various stages of a dispute, from in-house counsel, who are often the first involved when a disagreement arises, to the mediator or arbitrator who eventually helps resolve the dispute.

The interactive format had conference participants working hard in small groups to vote on and answer key questions about different types of dispute resolution processes and their desired outcomes, different stakeholders’ roles in the process and how it all can be improved. The results of the voting were presented separately according to stakeholder category, allowing us to see how our responses differed.

Some surprising results

The most interesting results that are worth considering in our future work as ADR practitioners showed a surprising divide in the attitudes of in-house and external counsel toward dispute resolution..

When asked what is achieved by participating in mediation or conciliation, external lawyers indicated that reduced costs and expenses were the most important result, with improving or restoring relationships coming in a distant fourth. In-house counsel, however, chose improving or restoring relationships as their overwhelming first choice, with reduced costs coming in a distant third.

This points to the fact that approaches to dispute resolution that aim at restoring relationships with a counterparty are more important to in-house counsel and, perhaps, to the company’s management, than external advisers may think. This suggests that we as ADR practitioners should consider using non-adjudicative dispute resolution processes more often when long-standing or important business relationships are at stake.

An effective combination

When asked what the most effective dispute resolution processes commonly involve, external lawyers chose combining litigation/arbitration with conciliation/mediation, whereas in-house counsel overwhelmingly preferred pre-escalation processes to prevent disputes.

For both groups, using adjudicative processes (litigation and arbitration) only was an option that lagged far behind. Also, most stakeholders chose pre-escalation processes as the tool most likely to improve the future of dispute resolution. This points to the fact that adjudicative processes are perceived as ineffective and that in-house counsel prefer negotiation even over a combination of adjudicative and non-adjudicative methods.

Fascinatingly, an analysis of the results gathered thus far in five GPC host cities – Singapore, Lagos, Mexico City, New York and Geneva – show striking similarities in participants’ answers to this question, although these cities are diametrically different in culture and legal tradition. At all five conferences, using adjudicative processes alone was deemed an ineffective choice.

Most participants thought that education in business and law schools on different dispute resolution mechanisms was one of the most important factors in improving parties’ understanding of their different options. In fact, the Geneva Bar School is now introducing a course on ADR in its pre-bar exam courses for this reason.

Mediation and other non-adjudicative processes as the future of dispute resolution?

Anna-Maria Tamminen has described mediation as “the new ‘international arbitration’ for our generation” on the Young ICCA Blog the publication of the Young lawyers group of the International Council for Commercial Arbitration.

Similarly, the consensus among most participants in Geneva seemed to be that mediation and other non-adjudicative processes are rapidly winning ground and are desirable from a party perspective. One of the reasons for this are changes in corporate attitudes toward conflict prevention, including a desire to simply negotiate more intensely with the counterparty to the exclusion of lawyers prior to initiating a formal dispute resolution process.

Participants underlined that, in Switzerland and elsewhere, compulsory or voluntary conciliation and mediation results in extremely high settlement rates. It is common knowledge in Switzerland that the conciliation procedure mandated by law prior to starting most litigation proceedings leads to settlement in over 80% of cases. In some districts, the number increases to over 90%.

Interestingly, many participants want to make the results of mediation binding, with about 50% or more of each group of stakeholders approving of the idea of legislation or conventions regulating the recognition and enforcement of settlements, including those reached in mediation.

The consequences of overspecialisation

How do we explain the gaps between what parties and in-house counsel seem to want – to restore relationships with counterparties and to use less confrontational legal tactics – and what external counsel are used to providing, namely litigation and arbitration services, sometimes with an unhealthy dash of over-lawyering and escalation? In theory, all dispute resolution stakeholders should be aligned, but what interest do law firms that earn their fees through adjudicative proceedings have in helping settle cases or in promoting mediation?

I would suggest that the answer is simple – lawyers are bound by law and codes of professional ethics to protect their clients’ interests only. This includes advising our clients on the best method(s) of dispute resolution that fit their concrete situation, needs and goals.

What is more, external counsel seem to be those best positioned to adapt the future of dispute resolution to parties’ evolving needs. In Geneva, a large majority of participants voted that external lawyers were the most likely to be resistant to change in dispute resolution practice, but many also thought that external lawyers, out of all stakeholder groups, had precisely the potential to be most influential in bringing about change.

A plea for diversification of legal practice

Caroline Ming, Executive Director and General Counsel at the Swiss Chambers’ Arbitration Institution (SCAI), expressed her hope in Geneva that the future of dispute resolution would lie in the diversification of legal practice as a reaction to the over-specialisation of years past. She noted that dispute resolution practitioners tend to overspecialise in their own field without educating themselves sufficiently about other areas.

Thus, they each resemble a different type of worker laboring to renovate a house, such as a carpenter, painter or electrician. She wished for more “general contractors” who know about different types of judicial and alternative dispute resolution and can pick out the “workers” and “materials” that best suit the client’s needs depending on the specifics of the case.

Because it is our duty as lawyers to protect our clients’ interests, I agree. No one area of dispute resolution can solve all problems, and litigation, arbitration, mediation, negotiation and other processes each have a role to play. As in most cases, education and increased flexibility in our own ways of thinking can be the keys to change. In this case, change – and better serving our clients’ needs – might involve considering more and other dispute resolution methods than we are normally used to in our practice.

The voting results of all GPC conferences are available here.

This article was first published on the Young ICCA Blog, please find the original version here.

alisa-burkhard

Alisa Burkhard  is an Associate at the Zurich office of Altenburger Ltd legal + tax, where she practices domestic and international litigation and arbitration and is also a member of the firm’s Russian Desk. She holds a Master of Law degree from the University of Fribourg, Switzerland and a Master of Arts degree from New York University.

Posted by Alisa Burkhard in ADR, LOC Coverage, Negotiation

‘Linking Your Thinking’ To Satisfy Your Clients

Небесные струныDo you want to make sure that your commercial clients are happy with the dispute resolution services you are providing? Are you committed to tailoring your business to meet their needs? Irrespective of whether your clients are ‘dispute-savvy’ or still finding their way into the world of commercial dispute resolution, there are things that you can do to make sure you meet their expectations.

The Global Pound Conference is travelling around the world asking commercial users, judges, mediators, lawyers, academics and government officials to share everything they know about the best ways to meet the expectations of commercial clients. After analysing the feedback from the first 350 respondents, we have identified three steps that can help you meet the expectations of your commercial clients. Continue reading →

Posted by Emma-May Litchfield and Danielle Hutchinson in ADR, Data Analysis, LOC Coverage