The death of ADR – and other highlights from London International Disputes Week

by Henrietta Jackson-Stops

Informative, revealing and thought-provoking – London International Disputes Week certainly gave mediators and lawyers pause for thought. Here, I reflect on some of the issues covered…

A digital revolution

The week started with a keynote address from the Master of the Rolls, Sir Geoffrey Vos, who, among other things, spoke of the need to digitise the court system. He wasn’t proposing simply putting 19th-century processes online but completely overhauling the way that a claim makes its way through the legal system. He spoke of a new digital system that could integrate a variety of approaches to alternative dispute resolution – such as judges proposing outcomes in a form of early neutral dispute resolution and on-screen algorithms suggesting solutions to points of dispute as and when they materialise.

Sir Geoffrey had already given an indication of his views in a recent speech to Hull University and it was incredibly encouraging to those of us in the mediation sector to hear a renewed support for the increased use of ADR in the resolution of ­disputes.

The death of ADR?

However, is it the end for Alternative Dispute Resolution? Sir Geoffrey and Robert Buckland QC the Lord Chancellor, believe so. During the week both made clear their view that mediation or conciliation should no longer be seen as an alternative means of dispute resolution but an integral part. Although some may argue that this is just an issue of semantics, recent discussions that I’ve had with various members of the Ministry of Justice team indicate that there really is intention to change the way that mediation (and other forms of dispute resolution that aren’t litigation or arbitration) are viewed.

The label of alternative – with its suggestion of alternative medicine or simply not being usual – hasn’t helped the proper inclusion of mediation, conciliation and Early Neutral Evaluation (ENE) as credible means of dispute resolution. So I wonder now whether we can begin talking about dispute resolution as encompassing all forms of methods and drop the ‘alternative’.

External counsel and ADR

Despite the encouragement of those who run and organise our judicial system, there are still some barriers to increased use of mediation as a tool of dispute resolution and these were articulated in a number of webinars that sought the views of in-house counsel, practitioners and academics. In particular, the Corporate Counsel roundtable gave an interesting insight into the in-house perspective on mediation. All articulated support for mediation but discussed the issue of how to incentivise external counsel to seriously consider it as a means of dispute resolution – there was a view that there’s a tension between the interests of external counsel and that of the client. One participant thought that external counsel sometimes overlooked the fact that their clients weren’t in the business of disputes – as counsel are – but are in the business of relationships and that mediation offers an opportunity to provide a pause in which to consider how that relationship might be maintained in the face of a dispute.

Early Stage Mediation

Alison Pearsall from Veolia gave an insight into how difficulties in convincing business of the positives of mediation might be overcome. She suggested that adopting a general company policy of trying to mediate a dispute at an early stage was helpful because it meant that there was no debate over whether a suggestion of mediation might be seen as losing face.  Her view was that a consideration of mediation at an earlier stage encouraged a very helpful ‘deep dive’ into the dispute with the business – as opposed to just the in-house legal team – which allowed for a proper formulation of a dispute strategy for that matter.

She also thought that one of the selling points of mediation for the business was that they could retain control of the dispute, which might be their last chance before external counsel become involved and take control.

Multi-layered dispute resolution clauses

It’s clearly preferable for a business to take time at the start of a contract to consider what dispute resolution processes they might want to fall back on. My past experience, from a brief stint as a professional support lawyer, was that the dispute resolution clause, coming at the end of a contract, was often left to the last minute and my corporate colleagues would ring up in a panic asking what needed to be put in. However, in today’s climate, especially with the recent refusal by the EU to allow the UK to accede to the Lugano Convention, the method of dispute resolution needs really careful early consideration.

One view expressed by corporate counsel was that a multi-layered DR clause isn’t that helpful because it complicates matters especially in relation to mediation which is supposedly a voluntary process and that if parties don’t want to mediate they won’t mediate. However, another view is that even if a mediation takes place and isn’t successful it helps to focus minds and encourage the kind of ‘deep dive’ mentioned earlier – and may also narrow the issues and facilitate settlement further down the line.

The role of government

In a discussion hosted by Stevens & Bolton on international cooperation and government guidelines on dispute resolution during the Covid-19 pandemic there were interesting points made about the necessity of government encouraging or, indeed, mandating mediation.  Francis Xavier SC gave a view from Singapore where there has been a huge rise in mediation as a result of steps taken by the Singapore Government and judiciary in response to the pandemic to encourage a more collaborative approach to the resolution of disputes.

Arbitration was discussed and the view expressed – which I share – that unless arbitral institutions mandate the tribunals constituted under their Rules to encourage settlement discussions or mediation we won’t see any significant growth of mediation in this area. In Xavier’s experience, where mediation has taken place in the context of arbitration it’s frequently only where the parties have driven the process, not where counsel or the tribunal have led. So, perhaps, focus needs to be on educating business in the benefits of mediation. I, for one, am often surprised by how little is known of mediation by business leaders.

Mediation and the international stage

During the week, further encouragement of mediation’s cause came from an announcement by the Lord Chancellor that the Ministry of Justice will be opening a public consultation on whether the UK should accede to the Singapore Convention on Mediation.

There are mixed views on this. One side hopes that a system similar to that of the New York Convention on the Enforcement of Arbitral Awards will encourage international parties to mediation.  The other side suggests that it’s addressing a problem that doesn’t exist – how often is enforcement of mediated settlements an issue? From our experience it doesn’t seem to be an issue but then perhaps, as mediators, we don’t hear of the instances where a settlement later unravels.

Another view expressed to me is that accession to the Singapore Convention may, in reality, have the opposite effect of encouraging parties to mediation and may make international parties wary that any settlement that they do enter into at mediation will be immediately enforceable against their assets. I believe that this fear can be alleviated by the UK taking advantage of a reservation to the Convention that allows a state to declare that it will only apply the Convention if all parties to the settlement agreement have agreed that it should apply. I’d be really interested to hear more views on the subject.

What a week it was! Huge congratulations to all the organisers who made the first-ever virtual LIDW such a success. I look forward to next year – and hopefully meeting everyone in person.