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What does the GPC Series data say about dispute resolution trends?

by Natasha Mellersh on 24 Aug 2017

dispute_resolution.jpgThe main aim of the Global Pound Conference (GPC) Series, a project spanning 18 months, with events in 29 cities across six continents, is to collect data on dispute resolution around the world. Participants answer a set of Core Questions through a specifically designed app in which they are asked to rank their answers is order of preference.

The different stakeholders fall into one of five categories: a party (user of dispute resolution services) - a person or in-house counsel involved in commercial disputes; an advisor - an external lawyer or consultant to a party; an adjudicative provider - a judge, arbitrator, or organisation providing their services; a non-adjudicative provider - a conciliator, mediator or organisation providing such services; or an influencer - a researcher, educator, employee/representative of government, or any other person not in the previous categories.

At the end of each local GPC event, the voting data is compared and analysed at local, regional and international levels. Although online voting is still underway, the aggregated global voting results so far, comprising data from 27 events, have already indicated some surprising trends.

Predictability vs efficiency

The data throw into question common perceptions about the expectations of parties, suggesting that they may be willing to take a more flexible approach than was previously supposed. Such is the case with predictability of outcome - commonly presumed to be all important - versus that of efficiency: the means of achieving a result. 

Corporate clients, it has been assumed, want to size up a dispute at an early stage and are very risk averse when deciding on processes to achieve resolution. Interestingly, aggregate data from the GPC series show a vast majority of parties ranking efficiency (time and cost to achieve an outcome) as the most important factor when choosing a dispute resolution process, followed by advice from a lawyer or other advisor. Predictability was third. 

Adjudicative providers and influencers seem to be aware of these preferences, but lawyers have placed their own advice almost on par with efficiency - suggesting a gap between the preferences of parties and the perceptions of lawyers when it comes to selecting processes. These results suggest that more analysis is needed to assess party preferences and to understand why efficiency appears to be such an important issue.

More guidance needed on dispute resolution options

Another interesting trend concerns the role parties want providers to take in the dispute resolution processes. All stakeholders listed guidance on the available dispute resolution options above any other preference for the provider’s role.

The need for guided choice on using different processes is perhaps a surprising result for in-house lawyers, who are traditionally seen to favour predictability over flexibility. These results indicate a desire not to be locked into one form of dispute resolution. Most importantly however, the aggregate data demonstrate an alignment across stakeholders on how perception gaps can be addressed to further develop the dispute resolution market.

Promoting better access to justice in commercial dispute resolution 

One notable trend in the data globally has been the divergent expectations of in-house and external lawyers, raising questions about perceptions and communication between stakeholders. In-house and external lawyers also appear to have different priorities and hold different views on who has responsibility for driving change in dispute resolution, with external lawyers believing it is their role, and parties believing it is primarily the role of the client.

The aggregate data show that overall stakeholders agree that governments and ministries of justice should take the leading role in promoting better access to justice in commercial dispute resolution. Nevertheless, the results also indicate that institutions could be doing more to promote a full range of dispute resolution mechanisms. There appears to be a clear consensus that institutions, including courts and judges, could play a stronger role in process design - providing more tailored processes for parties seeking to resolve their disputes. 

During the GPC events there was much discussion on the role of law schools and academics in promoting different processes and training the next generation, with huge interest from young lawyers and students in consensual dispute resolution. On the subject of the future of dispute resolution, the aggregate results showed a strong consensus among all stakeholders in prioritising pre-dispute or pre-escalation processes to prevent disputes, followed by combining adjudicative and non-adjudicative processes e.g. through hybrid clauses. In third place stakeholders favoured non-adjudicative processes, such as mediation and conciliation. Adjudicative methods (e.g. litigation and arbitration), were ranked in sixth place. 

It is worth noting that many of those attending the GPC events may have already held an existing interest in non-adjudicative processes. However, the data and the in depth discussions taking place at the events have shown the dispute resolution community is capable of working together and promoting progress, innovation and efficiency in a wide range of processes in the future.

Winning at mediation

Topics: ADR, news

Natasha Mellersh

Written by Natasha Mellersh