litigation

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.

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Posted by Anita Phillips in ADR, Data Analysis, LOC Coverage, Mediation

Ediscovery In Hong Kong: Dispelling Some Litigation & Innovation Myths

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At a recent conference in Hong Kong, attendees were asked about how to improve the dispute resolution process for all parties. Data generated from a live, technology-enabled poll of the audience led to a thought-provoking discussion on the priorities and limitations to innovation in the dispute resolution process, specifically in Hong Kong.

Panelists and attendees agreed that the region currently has a quite low-tech experience, and some of the biggest obstacles attorneys face when seeking to resolve commercial disputes are financial and time constraints. Read more

Posted by Abigail Cooke in Arbitration, Comment, Dispute Management, Technology

Ask An Expert: Claudia Winkler

Claudia Winkler, Negotiation Trainer and the Director of the IBA-VIAC CDRC Vienna Mediation and Negotiation Competition, discusses legal education, the future of ADR and the importance of negotiation skills in transforming the culture of dispute resolution.

What is your current role in dispute resolution?

As a negotiation trainer, mainly being called for in-house trainings in law firms, I see myself in the role of a provider. For my client-communication coaching I also take the role of an advisor and coach to lawyers.

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Posted by Natasha Mellersh in ADR, Ask An Expert, Negotiation

What Is Holding Back Mediation In India?

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I shall not mince words. In 1996, the word ‘mediation’ appeared in Indian statutory law for the first time. Cut to 2017, we are still waxing eloquent as to mediation being a ‘new’ alternative dispute resolution (ADR) mechanism, and yet, it has not really picked up in India. With a narrative building up over the years, that there is not much awareness about mediation, and therefore it has not struck a chord with many Indian users. 

In a series of pieces, I intend to pose some difficult questions and explore possible answers. I hope that during the course of The Global Pound Conference (GPC) Series 2016-17, Chandigarh, these questions will either lose their bite, or, better answers are provided. I believe that this exercise would go a long way to identify why mediation has not become more popular in India. Moreover, I am quite hopeful that it will also enable us to formulate a strategy to give an impetus to mediation in India.

The questions are:

  1. Would it be beneficial to categorise mediation as an ADR mechanism?
  2. Does Indian law (statutory and case law) differentiate between conciliation and mediation?
  3. If the second question is answered in the affirmative, then, what is the legal framework which applies to mediation in India?
  4. What is the stand taken by India before United Nations Commission on International Trade Law (UNCITRAL), in relation to mediation?
  5. What is the legal framework which applies to private mediation in India?

1. Would it be beneficial to say that mediation is an ADR mechanism?

The question is not whether it would be correct to say that mediation is an ADR mechanism. The question is, would it be beneficial to say that mediation is an ADR mechanism. In my humble opinion, if we adopt a vanilla approach, mediation could fit into this category, as it is definitely an alternative to litigation. However, I believe that it is this resort to a vanilla approach which has been a disadvantage for mediation.

One of the main problems with identifying mediation as an ADR mechanism, is that adjudicative (decision based) processes like arbitration fall into the same category. Furthermore, negotiation, mediation, conciliation and arbitration are said in one breath; at least in India, as much as these non-adjudicative (settlement based) processes greatly differ from arbitration. I believe that it would be in the benefit of mediation that it is rescued from human factors and cognitive bias, and hence, we must airlift mediation out of the fold of ADR mechanisms and give mediation asylum.

Why human factors?

We trolled Snapdeal instead of Snapchat. We have confused Sonu Sood instead of Sonu Nigam. We are quite capable of creating a Burj Khalifa – Mia Khalifa fiasco too. Despite all awareness measures, users tend to get confused between arbitration and mediation, merely because they are ADR mechanisms. I say so unabashedly, because, even when the writing on the door is “PULL”, we tend to push the door, not out of curiosity, but out of habit. So, awareness measures do not take us a long way.

Why cognitive bias?

Arbitration has not really left a very good taste in the mouth of its users. As ADR mechanisms, there is a user perception that like arbitration, mediation is also a failure in the making. Human factors add to cognitive bias.

ADR mechanisms can either be adjudicative (arbitration) or non-adjudicative/consensual (negotiation, mediation and conciliation). It is this dichotomy which calls for isolation of arbitration from other ADR mechanisms.

If it is not beneficial to call mediation an ADR mechanism, then what should we call it?

In order to answer this question, let us examine the basics. Litigation and ADR mechanisms come within the fold of dispute resolution mechanisms. Litigation takes place in a court of law, and the parties neither have any control over the court of law nor over the proceedings. Needless to say, the parties have no say in the decision which is pronounced by the court of law.

While arbitration is an adjudicative process much like litigation, the arbitrator/arbitral tribunal is created by the parties and the procedure is decided by the parties. Subsequent to appointment and deciding the procedure, the parties neither have any control over the arbitrator/arbitral tribunal nor over the proceedings. Needless to say, the parties have no say in the decision or award rendered by the arbitrator/arbitral tribunal.

Pertinently, mediation is diametrically opposite to arbitration, in the sense that it is non-adjudicative. In fact, mediation is far more democratic and consensual as compared to litigation and arbitration, which in my view is nothing but private litigation.

A need for new terminology?

In sum and substance, mediation is radically different from litigation and arbitration, and hence, it would be in the benefit of mediation to call it a ‘consensual dispute resolution’ (CDR) mechanism. What is good for mediation is good for negotiation and conciliation too. Thus, negotiation, mediation and conciliation should be called CDR mechanisms. I hope that isolation of arbitration as an ADR mechanism from negotiation, mediation and conciliation which are CDR mechanisms shall play a pivotal role in making not just mediation, but also negotiation and conciliation, more acceptable.

Another prevalent narrative is that in India, mediation and conciliation are one and the same. The said narrative has been built, probably in a bid to make the outcome of a mediation enforceable as though it is a settlement agreement (which is the outcome of a conciliation). However, the said narrative has put the cart before the horse. But setting that aside, does Indian law (statutory and judge made) differentiate between conciliation and mediation? I shall be exploring the answer to the said question in the next piece.

Written by Arjun Natarajan.

Arjun Natarajan

Arjun Natarajan is a Delhi/NCR based commercial litigator and an accredited/certified mediator.

  

    

Posted by Arjun Natarajan in Negotiation

Ask An Expert: Juan Antonio Ruiz

Juan Antonio Ruiz

Juan Antonio Ruiz, Partner at Cuatrecasas in Barcelona, Spain, discusses a number of significant disputes trends, including hybrid clauses, online dispute resolution and the growth of mediation. Continue reading →

Posted by Natasha Mellersh in Ask An Expert
Avoiding The Litigation Spiral

Avoiding The Litigation Spiral

chuttersnap-179220Fisher and Ury’s ‘Getting To Yes‘ in 1981 was influential because it changed our prevailing attitudes from time-honored positional bargaining towards a more 21st Century interest-based negotiation. Thirty years later, Professor John Lande at the University of Missouri School of Law presented another important philosophical approach to dispute resolution in his book ‘Lawyering with Planned Early Negotiation’ (2011), which is directed at external counsellors.

He directly challenges the default approach to dispute resolution, which he calls litigation as usual” or LAU. Professor Lande points to the paradox of the “vanishing trial“, that despite LAU, only about 10% of cases in state courts and about 2% of cases in the federal courts actually get to a full-blown trial. Almost all are settled. The problem is that the 90% or 98% that settle are mainly resolved very late in the litigation life cycle, after most of the time and cost consumed in litigating have been spent.

Losing control

There are numerous reasons for this phenomenon. First, as in all fights and contests, parties revel in the fantasy that the other party is a demon that will run out of steam, back off and eventually capitulate. They fail to fully anticipate counterclaims and other forms of revenge, both in and beyond the courtroom, and often underestimate the costs and stress involved until they are locked into the litigious spiral. They are goaded on by their counsel, who invariably want more information, if not all information, before advising on settlement strategies, and meanwhile want to keep the parties apart in case they say too much and compromise their case.

External counsel remain acutely aware that the longer the case continues, the more fees it generates, and they all have budget targets to meet within their firms. Even if they do not deliberately place their own interests ahead of their client, which many consciously and genuinely do not, there is an irrepressible psychological force that encourages the case to continue along the winding adversarial path and follow the fixed process prescribed by legal rules for resolving disputes. Like a runaway wagon, the case is locked onto procedural railroad lines, gathering momentum. The parties cannot get off and become unable to think of another way to arrive at their destination until the courtroom steps, and the risks of losing, come into view.

A prison of fear?

Parties and their counsel often have unrealistic expectations, and it takes time for reality to kick in. Some parties just want to “have their day in court” or to feel vindicated, or, since revenge is a dish best served cold, they simply want to inflict injury on the other party – until they realise how the costs are mounting for themselves. Or they fear expressing weakness if they take the initiative to propose settlement talks. All these motivations forcefeed calories into the expanding litigation waistline, until it is fit to burst.

Professor Lande calls this a prison of fear where parties dare not negotiate because doing so may appear weak; or the other party may take advantage of you in a negotiation; or you will give away too much. External counsel may fear their client will be disappointed in them if they are not seen and felt to be litigating relentlessly, that they may be sued by the client for incompetence, or that they will lose fee income if the case settles too early.

Written by Michael Leathes.

This is an adapted extract from his book ‘Negotiation: Things corporate counsel need to know but were not taught’ (from pages 148-149).

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Michael Leathes spent his career as a corporate counsel with Gillette, Pfizer, International Distillers & Vintners and BAT based variously in Brussels, New York and London. His pro bono duties included board memberships of CPR Institute (2003-2006) and the International Mediation Institute (2007-2015).

Posted by Michael Leathes in 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

Ask An Expert: Julian Copeman

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Julian Copeman, Managing Partner of Herbert Smith Freehills’ Greater China offices, discusses dispute resolutions trends, data and the increasing role of technology in resolving disputes.

What do you hope the GPC will achieve?

The intention for Hong Kong GPC was to bring together stakeholders from across the disputes market to discuss the issues that face parties at the front line of disputes in Hong Kong, and indeed over 200 people attended on the day. We gained rich and valuable data and from that, we are hoping, will reach some real and tangible recommendations for change.  Read more

Posted by Natasha Mellersh in ADR, Ask An Expert

Can We Still Be Friends? London As A Global Seat Of Arbitration Post-Brexit

broken Wedding Rings symbolize the BrexitMichael McIlwrath, Global Chief Litigation Counsel for GE Oil & Gas opened his recent article An Unamicable Separation: Brexit Consequences for London as a Premier Seat of International Dispute Resolution in Europe with the following quote, attributed to the most prolific of all authors, ‘unknown’:

“I try not to think of divorce as failing at marriage but rather winning at bitterness and resentment.” Read more

Posted by Peter Boyle in Comment, News Analysis, Opinion

An Introduction To Construction Disputes

constructionMany factors contribute to construction disputes, especially if the property is based abroad. Most projects take a long time to complete, leading to uncertainties and delays that can result in disagreements. The following factors typically create international construction disputes. Read more

Posted by Ken Salmon in Construction Disputes, Introductory Guide

The Mediation Process: When And Why It Is Used

A photo by Steve Halama. unsplash.com/photos/NPKk_3ZK2DY

Mediation can be successfully deployed at any point in the timeline of a dispute – either before proceedings are issued, afterwards, up to, and even during trial. It is, after all, a facilitated negotiation and represents an opportunity to settle early, reducing stress, acrimony and legal costs.

Defining mediation is arguably a futile task: in the same way we accept that ‘beauty is in the eye of the beholder’, mediation is whatever users can imagine and can agree it to be. Thus, there are many different approaches, which vary widely according to users’ needs and the demands and timing of the case.

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Posted by Matthew Rushton in Introductory Guide