If the results of last month’s international dispute resolution convention* are anything to go on, by far the biggest reasons are risk reduction and cost reduction. Are these findings surprising? Not particularly but some of the other findings are. They suggest that, while we think we know best, we aren’t quite giving business users what they really want. When I say ‘we’, I mean litigators, arbitrators, mediators and mediation providers.
Over 75% of business ‘users’ said that mediation should be used:
a) as early as possible in a dispute’s life cycle
b) as part of the deal-making process – whether or not a dispute had arisen.
Over 66% of ‘users’ favoured the use of both mandatory mediation and contractual clauses requiring parties to mediate prior to litigating or arbitrating.
The results reveal a stark disparity between what users say they want and what dispute resolution professionals (i.e. ‘suppliers’) think clients need. For suppliers, the most important factor in dispute resolution is ‘focusing on the key issues’, with features like risk reduction and cost reduction being considered rather less important (13% and 15% respectively) and responses to the other above propositions being at best only half as enthusiastic as users. These may be freak results, time will tell, but they suggest that suppliers and users are misaligned.
I sometimes see a similar disconnect when business users are looking for a solution to a dispute. A vacuum, if you like, between the sorts of answers that their commercial and legal teams feel they can achieve with their counterparts and the results that litigation may offer. In part that is down to our legal education but often the solution can be as simple as bringing in someone one step removed early enough in a dispute’s life cycle to cut through obstacles and help people find a new way forward. It is generally much easier for that person to open a fresh line of dialogue and change the dynamics while scratching under the surface to uncover the real obstacles to settlement. Effectively, he or she can then act on behalf of ‘the deal’ and help the protagonists either close the deal, or if they prefer, separate sensibly, while managing the transition sensitively and productively. As so often with mediation, the main challenge in implementing this more widely is less to do with its effectiveness – and more that people are simply unfamiliar with it as an option.
Andrew is a leading commercial mediator and partner in gunnercooke.