Article from: TDM 6 (2014), in Editorial
This special brings the corporate voice to the debate about reforming alternative dispute resolution and effective conflict management. As users of legal services at all stages, transactional or post conflict, corporations expect a "service provider" mindset from the legal profession. Lawyers from both sides of the corporate structure tend to respond differently to those needs. Legal "re"training is inevitable if lawyers are observing the emerging trends in conflict resolution. After years of arbitration reign in the world of alternative dispute resolution (ADR), we are witnessing a rise in mediation and negotiations. This development affects legal training and practice in numerous ways. As we see throughout the special, corporate perspective prompts innovation in dispute resolution management in a variety of ways.
Starting with the role of in-house counsel, David Burt, Corporate Counsel of E.I. du Pont, stresses the importance of a proactive role for in-house counsel in conflict management in general and in mediation in particular. Next, Professor Kirchhof and Dr. Klowait introduce the challenges, regulation and future of dispute resolution in the German corporate sector through their analysis of the German "Round Table on Mediation and Conflict Management", which is a worldwide unique association of most major German corporations. The Round Table - also through its cooperation with the Institute of Conflict Management at the European University Viadrina - has become the driving force behind reform of commercial dispute resolution in Germany to achieve faster, more cost oriented, more efficient, and less disruptive forms of dispute resolution tailored to the individual dispute.
Mediation is a theme that has presented itself strongly throughout the special. Paul Lurie and Jeremy Lack explore in a very insightful article their concept of "Guided Choice" where the parties, with the assistance of a mediator initially focus on process issues to help identify and address potential impediments to settlement. Gillian Lemaire focuses, on the other hand, on the skill set needed from lawyers as well as mediators for a successful mediation. The contrast between the traditional legal training, which is "right based", to the business "commercial interest based" mindset is more present with the advent of mediation.
Another welcomed development is the involvement of independent experts at the early stages of a dispute. As Trogoff and Harfouche argue there is value in early intervention by independent experts in certain disputes. Through a case study, they draw important lessons for effective management of a construction dispute.
The special also features two interviews with prominent professionals in the field of negotiations and dynamics of conflict. Bernard Mayer brings his extensive interdisciplinary expertise to explain the importance of realizing what is "really" at stake and what motivates the different stakeholders in any given dispute. Similarly, David Lax of Lax Sebenius draws attention to the concept of 3 D Negotiations, which he developed together with James Sebenius in 2006, and which focuses, beyond "negotiating at the table" and creating a "win-win" situation, on the process before the actual negotiation takes place so that the agreement you are looking for looks desirable to the other side.
We have also tracked recent developments in institutional rules that cater to the corporate interest in effective and efficient dispute resolution processes. The Deputy Secretary General of the Stockholm Chamber of Commerce (SCC) showcases SCC's responsiveness to the needs of the international business community as well as the changes sweeping the legal profession. In the same venue, The German Institute for Arbitration (DIS) rules on "Conflict Management" present, for the first time, an innovative comprehensive dispute resolution suite. The Conflict Management Rules envisage the appointment of a conflict manager who helps the parties navigate the dispute resolution choices that best suit their conflict.
In an effort to review the attitudes of both corporations and corporate counsel towards dispute resolution, we chose to include two survey studies. The KPMG 2014 report titled "Over the Horizon: How Corporate Counsel are Crossing Frontiers to Address New Challenges" and the Eversheds report "Companies in Conflict: How Commercial Disputes are Won". Both surveys point in a similar direction: There is a need to increase the role of in-house counsel and business leaders in steering dispute resolution options and processes.
Both surveys attribute the perceived weakness of negotiations and mediation processes to the lack of formal enforcement. Speaking to that specific point, in her article about mediation, Brocas attempts to propose remedies for such weaknesses in the field of mediation. Ferreira, on another hand, attempts to dispel common misconceptions about the ability of negotiation clauses in a multi-tiered dispute resolution clause to deliver.
Kanti Rustagi explains, corporations in India find arbitration, international or otherwise, to be less attractive and challenging. Rustagi maintains that reforms are underway to create a pro ADR culture within the Indian courts, legal practitioners and corporations alike.
In cases where litigation is a must, having a standing litigation management plan in place is an essential factor in the success of corporate counsel to keep litigation under control as de Groot and Buziau of Houthoff Buruma argue.
Finally, we look into the role that technology can play in the face of the ever-increasing volume and velocity of data ("Big Data"). Copeland, explains how new application can optimize work, detect problems earlier, create better records and finally allow businesses to make better decisions especially in the fact of a dispute. Heuty and Pappagallo, on the other hand, make a case for using simple mobile phone technology to predict and reduce business - local community disputes in the extractive industry.