Mediation takes centre stage at London International Disputes Week 2022
The third annual London International Disputes Week (LIDW) took place over 5 days from 9 to 13 May 2022. The founders of LIDW chose to refer to ‘Disputes Week’, and the week’s packed programme spanned the spectrum of dispute resolution methods, with mediation standing alongside litigation and arbitration as a recognised dispute resolution choice. Indeed, a notable feature of the week was the way in which mediation - far from being represented by one or two standalone sessions – was woven into so many of the sessions which took place across the week.
We pick out below just some of the themes relating to mediation which came out of the week’s wide variety of keynote speeches, presentations and panel discussions.
Sustainability
The overarching theme of this year’s LIDW was ‘Dispute Resolution – Global, Sustainable, Ethical?’, and the two-day in-person conference which formed the ‘core’ of the week kicked off with an impassioned keynote on sustainability in dispute resolution delivered jointly by John Sturrock QC of the World Mediators Alliance on Climate Change, Lucy Greenwood of the Campaign for Greener Arbitrations, and Jenny Hindley of Mishcon de Reya on the Greener Litigation Pledge.
Inspired by the Arbitration Green Pledge, the Mediators’ Green Pledge outlines a series of steps that mediators can take to reduce the impact on the climate of each mediation they conduct, and it now has over 600 signatories from more than 50 countries, demonstrating real and growing commitment to sustainable dispute resolution within the mediation community. However, John also made a bigger argument which gives dispute resolution lawyers and their clients food for thought: that mediation as a dispute resolution method is fundamentally more sustainable than litigation or arbitration, given the efficiencies it can deliver in terms of time, cost and resource, as well as working well virtually in many cases.
Client focus
Mediation also featured prominently in a core conference session on settlement and risk management for businesses. An in-house panel comprising Abhijit Mukhopadhyay (President (Legal) and General Counsel for the Hinduja Group), Fiona Meany (Head of Litigation, JLL) and Kai-Uwe Karl (Global Chief Litigation Counsel, GE Renewable Energy) sent a strong message to the external counsel in the audience about the importance of finding commercial solutions which, wherever possible, preserve existing business relationships. As Abhijit put it: ‘our business is to make money and generate returns for the shareholders – our business is not to get into litigation’. Against that backdrop, he emphasised that it is critical to identify and address disputes early and described mediation as ‘a must’.
That said, both Abhijit and Fiona highlighted a potential perception on the part of some business stakeholders that mediation is a ‘legal’ process handled by lawyers rather than a process which needs the close input and involvement of the business. Abhijit observed that, as a result, internally he will tend to talk about ‘settlement’ rather than ‘mediation’, and Fiona noted the importance of educating the business on mediation. The discussion served as a reminder to the mediation community that there is yet more to do to highlight to businesses what mediation can offer in terms of speed, efficiency, flexibility and – ultimately – finding a commercial solution.
The importance of having the right business people at the mediation table was also highlighted. Kai-Uwe spoke of the importance of the business ‘owning’ a dispute, and of a joined-up approach between the legal, business and finance teams. Fiona echoed this, reflecting on the detailed thought process which should go into deciding who should attend a mediation, involving a variety of considerations such as appropriate authority, seniority and ‘business presence’, who has the relationships which might unlock the ‘human element’ of the dispute, and in some cases ‘matching’ who the other side are bringing to mediation.
Creative solutions
A number of sessions highlighted the flexibility and creativity of mediation, which can enable it to deliver solutions which litigation or arbitration alone cannot.
For example, in the settlement and risk management session mentioned above, co-moderator Rebecca Clark of IPOS Mediation highlighted the role of mediation as a tool for proactively managing portfolios of cases with related features, such as those arising out of the same development or involving a common insurer.
The discreet, confidential and creative nature of mediation was also highlighted during an event on art disputes which took place at the International Dispute Resolution Centre (IDRC), and again at an offshore trusts disputes session hosted at Baker McKenzie. In the context of art disputes, where the object in dispute can’t simply be sold and the proceeds split, because it might be the only one of its kind in the world, mediation can provide a more sophisticated outcome. William George of Addleshaw Goddard shared this view in relation to trusts disputes, arguing that mediation can provide a similar solution to what might be achieved via a judge but - because it can be framed to achieve buy-in from all parties - settlement at mediation can offer a finality and acceptance that a judgment or award imposed by a court or tribunal might not.
Perhaps the most memorable examples of the creative power of mediation came in the keynote speech of Judge Loretta Preska, Senior Judge and former Chief Justice, US District Courts, Southern District of New York. Judge Preska talked, for example, about ‘The Grand Bargain’, a mediated solution which settled the debts and assets of the City of Detroit following its 2013 bankruptcy. This process was led by Judge Gerald Rosen, Chief Judge of the Federal Court in Detroit, as a mediator, with a number of sub-mediators appointed to mediate sub-disputes within the case. The process involved working with a range of stakeholders including unions, pensioners and creditors, and a key objective was saving the City’s principal remaining asset, an irreplaceable art collection housed at the Detroit Art Institute (DAI). Financial contributions were raised from Detroit’s philanthropic elite, the DAI itself and the legislature; the unions came round when it appeared that pensions would largely be preserved; while personal injury claims against the City were sent to a separate arbitration process. Judge Preska described this as ‘the kind of outside the box thinking that is only possible in mediation’. Judge Rosen’s initial ‘doodle’ mapping out how a solution to this seemingly intractable problem might be achieved now hangs in the DAI, alongside the masterpieces it helped to preserve.
Training
Another question raised during the settlement and risk management panel concerned whether we do enough to train lawyers in the skills of mediation and negotiation. As incoming chair of the Civil Mediation Council, Rebecca Clark of IPOS Mediation spoke about how they are liaising with universities to ensure that appropriate skills training in this area is embedded into legal education. Indeed, learning about these skills may even start earlier, with the concept of peer-to-peer mediation in schools. In the meantime, law firms and in-house teams should revisit their mediation and negotiation training programmes to ensure that there is sufficient focus on these vital skills.
There was certainly much for all in the audience to learn from the ‘fireside chat’ between Natalie Reynolds, Managing Director of the Accenture Negotiation Centre of Excellence, and Jonathan Powell, the CEO and Founder of Inter Mediate who served as Chief of Staff to Tony Blair from 1997 to 2007 and was the chief British government negotiator on Northern Ireland during that time in office. Natalie and Jonathan’s conversation about negotiation - both with terrorists and in business – offered some very useful insights into the psychology of negotiation and what works. Mediators sometimes see parties come to the table underprepared and underskilled for the negotiation before them. Natalie’s book ‘We have a deal’ offers a valuable refresher on the approach required.
Digitalisation
Finally, we must look to the future. In a keynote setting out his vision for digital justice, Sir Geoffrey Vos (Master of the Rolls, President of the Civil Division of the Court of Appeal and Head of Civil Justice in England and Wales) explained that such a system will allow for integrated mediated interventions, proposing and progressing consensual ways of resolving disputes at numerous stages throughout the lifetime of a case. This offers both opportunities and challenges to the mediation market, which will need – as is inherent in the mediation process – to remain adaptable and creative in how it responds.
Henrietta Jackson-Stops (Mediator, Partner at IPOS Mediation) and Emilie Jones (Legal Director (Practice Development Lawyer), Pinsent Masons LLP). Hetti and Emilie are members of the LIDW Strategy Group.