Can't we just talk this over
The Anglo-American alliance will have an impact on the use of alternative dispute resolutionAlternative dispute resolution comes of international age in London this evening with the sealing in Westminster of the strategic alliance between CEDR, the Centre for Effective Dispute Resolution, and JAMS, its American equivalent.
For devotees of the "alternative" (some say "additional") approach to sorting out business battles, it is a development that is overdue. Globalisation, and especially transatlantic commerce, needs a quality-assured forum within which contending parties can settle their grievances pragmatically. Although the courts system is an indispensable backdrop to business life, disillusionment with its costs and complexity goes deep. Time-consuming for management and stressful for business relationships, it is probably the worst way of dealing with day-to-day disagreements. In Britain, the Woolf reforms (the Civil Procedure Rules 1998) marked an important step towards avoiding litigation wherever possible. But on the international stage there has been a gap in the provision of mechanisms and experts able to inspire confidence among the clients.
"CEDR and JAMS feel it is in the international arena that mediation has the potential to make the biggest difference to business," says Eileen Carroll, deputy chief executive of CEDR. "The more complex the problem, the greater the need for a broader and flexible approach, which is what we want to facilitate."
Alternative dispute resolution, or ADR, has its roots in the United States,
where many of the techniques now being used were refined. But Britain was not
too far behind. More significantly, though, for the latest development, ADR is
now starting to pick up across Europe. There is a draft EU Mediation Directive,
due to come into effect in two years, which will encourage the European
Commission and member states to promote the development of voluntary codes of
conduct for mediators and service providers. CEDR (and JAMS) will be there,
ready, as the leading ADR body in the EU, to capitalise on this opportunity.
Keith Gaines, a mediation expert with Lovells, says: "This alliance will put
CEDR and JAMS in a great position to crack the European market."
For Alex Oddy, of Herbert Smith, the development is a reflection of just how far alternative dispute resolution has come in the past decade. "In the mid-1990s, CEDR was a lone voice preaching the case for ADR," he says. "Now it is in the armoury of every dispute resolution department."
Perhaps the key feature of this new alliance, he says, will be the scope for
offering co-mediators -- American and English -- to resolve transatlantic
disputes.
Not surprisingly, the vital component of an effective mediation is the quality of the individual mediator. Both CEDR and JAMS have extensive training programmes for their mediators and carry out in-depth follow-up with users to monitor satisfaction levels. Often it is a matter of "horses for courses" to get the right mediator so great care is taken in selecting the most appropriate person for a specific dispute.
JAMS, for example, can draw on the services of 200 full-time mediators, known as neutrals. These are largely retired judges and attorneys with impressive records. What they bring to the mediation is massive experience, sagacity and the street-smart ability to produce a workable solution that will be acceptable to both sides. Some of the best are aged in their late sixties and seventies (JAMS even has one in his eighties). What counts is the ability to win the confidence of both parties and -- especially in international cases -- to deploy their cultural awareness to propose solutions that do not run against the national grain.
One of JAMS' stars, is Dan Weinstein, who had an outstanding career on the bench. He now, as a mediator, has experience of resolving cases involving billions of dollars annually on behalf of corporations such as Apple, Motorola and Hewlett Packard plus a wide range of environmental, class action and securities disputes. He says that there has been a change in mood among the business community. Their focus is increasingly on getting a reasonable result and lawyers who insist on pressing through to a final courtroom showdown -- unless this is essential -- will fall out of favour. "Once lawyers start to realise that it's not against their economic interest to engage in this, then ADR will become even more used," he says.
Without question the savings to the client are potentially enormous but if
lawyers' earnings are based on results (rather than merely the time spent on a
case) they should not see a major loss. Indeed, most of the leading City
practices are supportive. The litigation firm Herbert Smith, for example, is a
founder member of CEDR and Michael Davis, a partner, is one of its non-
executive directors.
However significant the setting up of the CEDR-JAMS alliance many be, it is not the only ADR initiative. Work is also pressing ahead, based at Leeds University and led by the Bar Council and the Chartered Institute of Arbitrators, in the development of an Anglo-Chinese dispute resolution service, exploiting video and e-technology, which is seen as having a key role in enabling the development of trade links between the two countries. With support from the British Computer Society, the Treasury Solicitor and the Department for Constitutional Affairs -- reflecting the Government's promise to support ADR wherever possible -- it is felt that this is a way in which Britain can consolidate its position as a leader in the field of major international arbitration and mediation.
Not everyone, it must be said, is a fan of e-ADR. But this is a time of
experimentation. Who knows where it will lead. But, come what may, tonight's
ceremony marks an important advance.
