GLOBAL POUND
CONFERENCE SERIES
GLOBAL POUND
CONFERENCE SERIES
Global Data Trends
and Regional Differences
Contents
01 Chairman's Introduction
02 Executive Summary
05 About the Global Pound Conference (GPC) Series
06 Delegates, the Core Questions and Voting
09 Global Voting Data – The Key Themes and Observations
19 Regional Differences – Preliminary Analysis
26 Word Clouds from around the Globe
28 Appendix 1
29 Contacts
Chairman's Introduction
I am delighted to welcome you to this important report. It analyses,
for the first time, the voting data captured at the Global Pound
Conference (GPC) Series.
The GPC Series has rebooted the discussion about dispute resolution
and engaged all stakeholders to the debate. It is for this reason that
the Global Pound Conference has evolved through its journey to
become the Global Pound Conversation. A wealth of online resources
continues to evolve to facilitate this ongoing conversation.
The GPC Series has been unique in terms of scale and ambition.
The idea of surveying thousands of stakeholders engaged in dispute
resolution in a standardised way at interactive conferences was
I hope you enjoy this report. As an in-house counsel responsible
conceived in 2014 by the International Mediation Institute (IMI).
for managing a worldwide docket of disputes, I believe it provides
This was developed throughout 2015 and came to reality between
March 2016 and July 2017 through 28 conferences at locations across
the globe. The conferences were followed by an international
online survey.
new and practical insights. It is a springboard for more research and
conversations over the years to come.
I urge you to visit the website at www.globalpound.org and join the
Global Pound Conversation.
This project focuses on the needs of Users (both corporate and
individual) of civil and commercial dispute resolution services.
In doing so, it has prompted a much needed global conversation
about how conflict can and should be managed in the
21st Century.
Pervasive disruptors like technology and globalisation have changed
the business landscape almost beyond recognition. Yet dispute
resolution processes have simply not caught up. This project has
generated actionable data to question the status quo. It has armed
us with a mandate for change and the outputs are already informing
public policy making and private dispute resolution choices around
the world.
Michael McIlwrath
GPC Series Chair
Global Chief Litigation Counsel,
Litigation, GE Oil & Gas, Director of IMI
01
Executive Summary
The GPC Series convened more than 4,000 people at 28
conferences in 24 countries across the globe in 2016 and 2017.
Those delegates – and hundreds more who contributed data
online – voted on a series of 20 Core Questions to gather data to
inform the future of dispute resolution. This report summarises
the results of the first analysis of the global data, and identifies
four Key Global Themes and four notable Regional Differences
1
.
The GPC provides an opportunity for extensive research in the
years to come and conversations between stakeholders.
These early insights show the potential of the GPC data to
inform those studies and discussions.
02
The four Key Global Themes we identify are:
Efficiency is the key priority of Parties
1
in choice of dispute resolution processes
1
Efficiency means different things to different stakeholders but this throws down a challenge to the way in which
traditional dispute resolution processes meet the needs of the Parties seeking dispute resolution services. Finding the
most efficient way to resolve a dispute may not always be the fastest or cheapest but it requires thought and
engagement to bring appropriate resolution in acceptable timeframes and at realistic costs.
Parties expect greater collaboration from Advisors in dispute resolution
Parties using dispute resolution services seek greater collaboration from their external lawyers when interacting with
them and their opponents. This represents a potential challenge to traditional notions of how lawyers should represent
clients in disputes.
2
Global interest in the use of pre-dispute protocols and mixed-mode dispute resolution
(combining adjudicative and non-adjudicative processes)
3
As global understanding of and interest in non-adjudicative dispute resolution processes grows, there is near universal
recognition that Parties to disputes should be encouraged to consider processes like mediation before they commence
adjudicative dispute resolution proceedings and that non-adjudicative processes like mediation or conciliation can
work effectively in combination with litigation or arbitration.
In-house counsel are the agents to facilitate organisational change. External lawyers are
the primary obstacles to change
4
The data shows a broad consensus that in-house counsel should encourage their organisations to consider their dispute
resolution options more carefully, including using non-adjudicative processes like mediation and conciliation. External
lawyers are reported to be – and perceive themselves to be – resistant to change, but a new generation of in-house
counsel will challenge this resistance.
1 See page 6 for definitions
2 The raw data for these votes as provided by the technology provider, PowerVote, can be found here:
http://globalpound.org/wp-content/uploads/2017/11/2017-09-18-Final-GPC-Series-Results-Cumulated-Votes-from-the-GPC-App-Mar.-2016-Sep.-2017.pdf
03
03
The four Regional Differences we identify are:
Desire for increased regulation in Asia
1
Stakeholders in the Asian jurisdictions voted consistently in ways that highlighted the role of legislation or
international conventions to promote the enforcement and recognition of settlements. Since practical
experience rarely reveals difficulties with enforcement, this regional trend may be an indicator that a more
developed regulatory framework would assist acceptance and use of non-adjudicative dispute resolution
processes like mediation and conciliation.
Efficiency the priority – except in Asia
2
When the global data was segmented by regions it was clear that efficiency was the key priority in all
regions except Asia, where the key priority was the certainty and enforceability of outcomes. This may
indicate an important underlying difference about how stakeholders in Asia perceive non-adjudicative
dispute resolution processes.
Continental Europe marches to a different beat
3
Delegates at the Continental European conferences voted differently to all other regions when it came
to the relationship between in-house counsel and external lawyers in changing dispute resolution habits.
This revealed a conundrum in Continental Europe where delegates indicated that in-house counsel were
looking to drive change in corporate attitudes to conflict prevention while battling with a lack of knowledge of
dispute resolution options to effect that change. There was less emphasis on collaboration in this region too.
The legacy of the Woolf Reforms – visible in the UK
4
Lord Woolf's ground-breaking reforms to the civil justice system in England and Wales in the late 1990s
embedded the role of ADR in the case management of civil litigation. Nearly 20 years on, the data from the
London GPC Series finale reveals well-informed in-house counsel familiar with dispute resolution processes,
focused on collaboration and efficient dispute resolution using non-adjudicative processes in pre-action
protocols and mixed-mode dispute resolution.
04
About the GPC Series
The GPC Series takes its name from the original Pound Conference in St Paul,
Minnesota, USA in 1976. Named in honour of Roscoe Pound, the reforming Dean
of Harvard Law School in the 1920s and 30s, the theme was "Agenda for 2000 AD
– The Need for Systematic Anticipation". This event led to many changes in the
US justice system, including the creation of the 'multi-door courthouse' and the
advent of alternative dispute resolution processes like mediation.
Forty years on from the original 1976 Pound Conference, dispute
resolution has reached an impasse. The stakeholders in the
dispute resolution field around the world are fragmented and
there is a lack of reliable, comparative and actionable data to
enable the supply side of the dispute resolution market to fully
meet Parties’ needs, both locally and transnationally. The GPC
Series represented a timely opportunity to reassess the dispute
resolution landscape and ask stakeholders all across the world
what they think needs to change.
The GPC Series was conceived and led by the International
Mediation Institute (IMI), a non-profit public interest initiative
which seeks to promote and improve the use of mediation
worldwide. The GPC Series' Founding Diamond Global sponsors
were Herbert Smith Freehills and the Singapore International
Dispute Resolution Academy (SIDRA). PwC was a Global Platinum
sponsor, with JAMS a Global Gold sponsor, and AkzoNobel, the
American Arbitration Association/ICDR, the Beijing Arbitration
Commission (BAC), the China International Economic and Trade
Arbitration Commission (CIETAC) and Shell all Global Silver
sponsors. They were joined by 54 Global Partners and over
100 organisations who supported the GPC Series locally.
The entire dispute resolution industry was represented at the
conferences including commercial parties, lawyers, experts,
chambers of commerce, academics, judges, arbitrators,
mediators, conciliators, policy makers and government officials.
Using a bespoke voting and feedback App, including multiple
choice and open text questions, delegates gave their views on
what Users of dispute resolution need and want locally and
globally. The series generated considerable data and created
an opportunity to identify trends and preferences in a way
that has not been possible previously.
Global Sponsors
Diamond sponsors:
Platinum sponsors:
Gold sponsors:
SINGAPORE
INTERNATIONAL
DISPUTE
RESOLUTION
ACADEMY
Silver sponsors:
Al<zoNobe!}/
a INTERNATIONAL CENTRE
• FOR DISPUTE RESOLUTION" Bll�C
05
Delegates, the Core Questions
and Voting
While the GPC Series was about much more than data gathering, the heart of each
conference was the delegates voting on 20 multiple choice Core Questions. These were
developed with the assistance of the GPC Academic Committee (see Appendix 1 for
its members).
Voting was on a weighted multiple choice basis – most questions
offered delegates five or six options and delegates selected up to
three choices with their first choice scoring 3 points, their second
choice 2 points and their third choice 1 point. As a result, the
voting results were expressed as a percentage of the total number
of points available to a given answer.
The five stakeholder groups were:
1) Parties
end-users of dispute resolution, generally
in-house counsel and executives
2)
Advisors
A response with a score of 100% equates to every voting delegate
choosing that option as their first choice. In reality, no response
achieved this score; the most important responses achieved
a score of 60% or more, with a variance of 10% between
responses marking a significant difference in opinion across
stakeholder groups.
private practice lawyers and other
external consultants
3) Adjudicative Providers
judges, arbitrators and their supporting institutions
4) Non-Adjudicative Providers
mediators, conciliators and their
supporting institutions
5)
Before voting, delegates were required to identify themselves as
coming from one of five stakeholder groups so that their primary
professional focus could be captured in the voting preferences.
Influencers
academics, government officers, policy makers
06
Each conference was organised around four interactive sessions looking at both the demand and supply sides of the dispute
resolution market. The sessions provided the structure for the voting on the Core Questions and discussion of the results. They were:
• Access to Justice & Dispute Resolution Systems: What do Parties want, need and expect?
• How is the market currently addressing parties' wants, needs and expectations?
• How can dispute resolution be improved? Overcoming obstacles and challenges.
• Promoting better access to justice: What action items should be considered and by whom?
The delegates at conferences were self-selecting in that they
chose to participate in person or online. As a consequence, the
data gathering was never intended to replicate the conditions for
the gathering of academic data. Nevertheless, the voting
•• Delegate registration questionnaires.
•• Responses (via the App) on a series of open text questions in
each session, which were discussed by the panels and
delegates during the events.
population was truly global, covering all continents, common and
civil law systems, jurisdictions well known for highly developed
dispute resolution systems, and jurisdictions which are
developing ADR procedures to complement existing mechanisms.
It provides a fascinating and unique global insight into dispute
resolution today.
•• Input into four Word Clouds which sought to capture the key
words reflecting delegates' views. (Selected Word Clouds are
highlighted later in this report to give a sense of the differing
views and priorities around the world).
•• Questions and comments collected in the App as each session
unfolded, which other delegates could “like”, thus ranking by
popularity with other delegates.
The voting took place at each conference live among the
delegates using the App
3
. The questions were also opened up
to online voting after the last event in London in July 2017,
until 31 August 2017. In addition to the voting on the Core
Questions, a wealth of additional data was collected at each
event through:
Consequently, GPC collected a great deal of data on the thoughts,
wishes and perspectives of the delegates. The focus of this report
is to review and interpret the key responses that emerge from the
multiple choice Core Questions only. There remains a huge body
of material still awaiting analysis. It is available for further
investigation and research in discussion with IMI and the
Academic Committee. Please feel free to contact Jeremy Lack or
Barney Jordaan in the first instance to discuss.
3 For France, India, the Netherlands and Spain (Barcelona), there was some variation in the voting procedure.
07
"The scale of the GPC is unique and valuable, and the insights
it offers merit further analysis and discussion. In terms of
geographical reach and scale, there are no comparable
In addition to the quantitative voting data, the qualitative
discussion data captured at the events is a further rich source
waiting to be mined by academics and others in years to come.
academic or other studies in the field of dispute resolution.
We have at this stage only scratched the surface of the research
potential of GPC. It has the ability to help shape the future of
dispute resolution at both local and international levels."
Of course, while all care was taken to ensure the integrity of the
data gathering process and rigour in the formulation of the survey
questions and analysis of data, the project was not intended to be
primarily an academic project, nor does the data gathering process
represent a pure data collection environment. Any use of the GPC
data must therefore be undertaken with this in mind.
Nevertheless, the preliminary analysis of the Core Questions
provided by this report shows global trends that offer immediate
insights and scope for further detailed local, regional and
international analysis. The complete data set is available online on
the GPC’s website, and all academics and researchers are welcome
to analyse, critique and comment on it.
Prof. Barney Jordaan
GPC Academic Committee Chair
Professor of Management Practice,
Vlerick Business School, Belgium
08
Global Voting Data – Key Themes
and Observations
The global voting data provides a wide range of insights into the topics raised in the
Core Questions. Herbert Smith Freehills, PwC and IMI and have analysed the data to
draw out some key themes, which can be split into two groups: Key Global Themes
emerging from the voting data; and observations on Regional Differences.
Key Global Themes
1
Efficiency is the key priority of Parties in choice of dispute resolution processes.
2
Parties expect greater collaboration from Advisors in dispute resolution.
3
Global interest in the use of pre-dispute protocols and mixed-mode dispute
resolution (combining adjudicative and non-adjudicative processes).
4
In-house counsel are the agents to facilitate organisational change.
External lawyers are the primary obstacles to change.
09
09
1. Efficiency is the key priority of Parties in choice of dispute resolution processes
Q1.2 When parties involved in commercial disputes are choosing the type(s) of dispute resolution process(es) to use, which of the following has the
most influence?
4
Top 3 responses
65%
46%
E ciency
Advice
32%
Additional responses
24% Relationships
Predictability
19% Con dentiality
13% Industry Practices
1% Other
Parties
•• This represents a challenge to traditional adversarial dispute
resolution models, whether public (domestic courts) or private
(institutional and ad hoc arbitration). Parties are looking not just
for justice and resolution of their disputes, but an efficient
journey to resolution.
Providers (neutrals) may reflect that arbitration rules and
mediation procedures are not ends in themselves but exist
among a range of tools to assist parties in resolving disputes.
Flexibility, pragmatism and listening to Parties will likely
translate to sustainable success. Providers can take more of a
role in helping Parties and Advisors to consider routes allowing
greater efficiencies.
•• Efficiency in the resolution of commercial disputes will not
always be as simple as the quickest and cheapest route to
resolution (although cost and speed will always be important).
Inherent to efficiency is the avoidance of waste, be that time,
money, effort or other factors – and avoiding waste
requires thought and flexibility among the dispute
resolution stakeholders.
Influencers can acknowledge that the resolution of commercial
disputes is a commercial endeavour in which each stakeholder
seeks to prosper and exercise (where possible) choice about
forum and process to further the ends of Parties. A greater
range of issues can also be considered in each case, beyond
the merits of the case, the time to outcome or the costs of
•• Understanding what efficiency really means in terms of changing
the behaviour of stakeholders requires further discussion:
the process.
Parties may need to communicate their priorities, expectations
and underlying interests to Advisors and other stakeholders
more clearly.
•• Technology can drive efficiency. This is not limited to electronic
discovery and electronic filing in litigation. Dispute management
tools and online dispute resolution (ODR) have the capacity to
change fundamentally the way disputes are resolved over the
next decade. We are already seeing how artificial intelligence (AI)
can automate the work of lawyers and adjudicators, paving the
way for decision-making robots.
Advisors can challenge themselves to focus relentlessly on
their clients' interests, being prepared to initiate or facilitate
non-traditional dispute resolution with combinations of
adjudicative and non-adjudicative processes.
4 Based on the votes of Parties only.
10
Q1.5
2. Parties expect greater collaboration from Advisors in dispute resolution
What role do parties involved in commercial disputes typically want lawyers
(i.e. in-house or external counsel) to take in the dispute resolution process?
What role do parties involved in commercial disputes typically want lawyers
(i.e. in-house or external counsel) to take in the dispute resolution process?
Q1.5 What role do parties involved in commercial disputes typically want lawyers (ie in-house or external lawyers) to take in the dispute
resolution process?
61%
67%
Working collaboratively with parties to
navigate the process. May request action
on behalf of a party
Speaking for parties
and/or advocating on
a party’s behalf
Parties
Advisors
48%
61%
Advocate
Collaborate
•• One of the key discrepancies to emerge in the voting data was
between how Parties said they wanted their lawyers to behave
in dispute resolution processes and how those lawyers, the
Advisors, saw their own role.
•• The key difference in the voting was that Parties indicated that
they wanted to see greater collaboration from their Advisors in
dispute resolution processes, whereas Advisors consistently
reported that they saw their role as advocates for their clients.
The Advisors who attended GPC events are, similarly, likely to
be a more sophisticated group in terms of ADR knowledge and
usage than their peers. But even taking this into account,
why were the GPC Advisors’ votes so clearly out of step with the
GPC Parties’ votes? The answer may lie in the fact that most
Advisors will have clients reflecting a spectrum of experience,
from the most sophisticated to relatively unsophisticated clients
who are only rarely involved in disputes and therefore rely
heavily on advice from their lawyers as to process choice,
behaviour towards counterparties and strategy.
•• Are these positions inconsistent? Are lawyers out of step with their
clients' needs? These are complex issues but some initial
perspectives on these data are:
Whether or not these differences reflect different experiences
between Parties and Advisors, there is a clear challenge to
the legal community to listen to clients and discuss whether
The GPC Parties were a sophisticated group of delegates.
GPC Parties are more likely than the average disputant to
collaboration is wanted and what that really means in a given
know what they want, and be more familiar with and skilled
in the use of ADR processes – all of which informs the
expectations and approach of their legal advisors.
situation (particularly when disputes are acrimonious or thought
to be unmeritorious). This may be a genuine challenge to the
traditional notion of zealous advocacy where every point and
position is argued on behalf of the client.
Parties will need to speak up and reassure lawyers that they
wish them to try a different approach. A rigorous attention to
the law, of course, but also an approach to dispute resolution
that is flexible and open to using different processes. One that
acknowledges risks where they exist and is focused on efficient
outcomes, not unnecessarily expensive or drawn out journeys to
resolution. If Parties wish to promote efficiency in dispute
resolution they may need to encourage their lawyers to focus on
the core issues and discourage fighting points for their own sake.
11
"Greater emphasis on collaboration between in-house and
external lawyers, and between disputing parties, will lead the way
for more efficient resolution of commercial disputes. Most dispute
amounts of data quickly and assess risk in more sophisticated
ways. Conventional views on the role of confidentiality are being
challenged. This should facilitate the earlier use of consensual
resolution still has as its frame of reference an adversarial process
processes like mediation, in advance of, or in parallel with, or even
based on asserted legal rights. But this can be inconsistent with
the aspirations of the parties for quick, consensual resolution.
integrated into litigation or arbitration. The global data indicates a
mandate for change in attitudes and approach."
An early case assessment is a good example of how closer
collaboration can increase efficiency, with in-house counsel and
external lawyers working together to review the wider interests
and risks. The results can in turn help inform a more resolutionfocused
approach
with counterparties.
Technology also has a role to play. Social tools and online platforms
are making it easier than ever for lawyers to work more closely with
each other and with their clients. Advancement in data analysis
enables advisors and legal teams to review and investigate large
Alexander Oddy
GPC Executive Board Member
Partner, Herbert Smith Freehills
T +44 20 7466 2407
E alexander.oddy@hsf.com
12
3. Global interest in the use of pre-dispute protocols and mixed-mode dispute
resolution (combining adjudicative and non-adjudicative processes)
Q3.2 To improve the future of commercial dispute resolution, which of the following processes and tools should be prioritised?
Top 3 responses
51%
45%
43%
Additional responses
32% Reduction of
Combining
Non-adjudicative
processes
resolution
Preventative
pre-dispute or
pre-escalation
processes
time and/or costs
methods
18% Technology for
faster/cheaper
procedures
10% Adjudicative
resolution
methods
1% Other
*Adjudicative and non-adjudicative
0
•• One of the striking areas of congruence across the GPC events
and all stakeholder groups was the interest in two closely
linked phenomena. First, the use of protocols to encourage the
use of non-adjudicative dispute resolution processes like
mediation or conciliation before adjudicative processes such as
litigation or arbitration. Second, the use of non-adjudicative
processes in combination with adjudicative processes, whether
this is at the encouragement of a court or arbitration body/
tribunal or by agreement of the parties. Such "mixed-modes"
of dispute resolution can be done sequentially, in parallel, or
integrated with one another.
13
Q3.3 Which of the following areas would most improve commercial dispute resolution?
51%
Legislation
or conventions
inc. mediation
Top 3 responses
Additional responses
29% Accreditation or
certi cation systems
28% Quality control and
36%
47%
Cost
complaint mechanisms
sanctions
5% Third party funding rules
Protocols promoting
non-adjuticative
processes
3% Other
•• There seems to be near universal recognition that before
parties embark on adjudicative processes – which are typically
expensive undertakings of significant duration – they should
be at least encouraged (and potentially compelled) to explore
less costly non-adjudicative options. This could be achieved
through the development of pre-action protocols to be
followed before court proceedings can be commenced (save
where limitation or tolling periods are required or a particular
remedy like an injunction is needed), or through arbitration
clauses and rules encouraging parties to consider alternatives
before a tribunal is constituted.
•• There seems to be a clear consensus that combining processes,
or mixed-mode dispute resolution, is the way forward. The
challenge is to find ways to achieve this efficiently and quickly,
recognising that there will inevitably be resistance to change in
many quarters. It is critical in this development that Parties are
vocal in their demands and that Advisors, Providers of all types
and Influencers are open-minded. Self-interest, familiarity and
the comfort zone need to give way to a relentless focus on
efficiency, supported by collaboration
5
.
•• Adjudicative processes also need to provide occasions and
opportunities for the disputing parties to step away from the
heat of the battle and engage with each other
in a different manner (through mediation or another
non-adjudicative process). This can be achieved through judicial
case management or through changes to domestic rules of
civil procedure or to arbitration rules where referrals to
non-adjudicative processes exist on an opt-out basis.
5 IMI, the College of Commercial Arbitrators (CCA) and the Straus Institute for Dispute Resolution at Pepperdine School of Law have responded to this data by initiating a
tri-partite Mixed-Mode ADR taskforce, involving six different working groups. For more information about this taskforce or to join one of its working groups, see: http://
www.imimediation.org/about-imi/who-are-imi/mixed-mode-task-force/.
14
4. In-house counsel are recognised as the agents to facilitate organisational
change. External lawyers are the primary obstacles to change
Q3.4 Which stakeholders are likely to be the most resistant to change in commercial dispute resolution practice?
70%
Top 3 responses
External
lawyers
40%
28%
Adjudicative
Providers
Additional responses
27%
In-house lawyers
Governments/
ministries of
justice
25% Parties
8% Non-adjudicative Providers
1%
Other
•• Recognising that the GPC data and experience throws down
a challenge to all stakeholder groups to listen and respond,
the voting data reveals some stark messages about the
obstacles to and agents of change.
•• But why should that be the case? The Core Questions explored
whether Advisors might be making recommendations for
dispute resolution process choice based on the potential to earn
(or not to earn) fees. But the voting data [Session 1, Q3 – see
over] suggested that this was not a major factor – or at least it
was far less significant than factors like the type of outcome
required or familiarity with a dispute resolution process.
•• All stakeholder groups identify Advisors (predominately private
practice lawyers) as the primary obstacle to change in
commercial dispute resolution practice. The lawyers showed
the self-awareness to also identify themselves as the group
most resistant to change.
15
Q1.3 When lawyers (whether in-house or external) make recommendations to parties about procedural options for resolving commercial
disputes, which of the following has the most influence?
59%
Top 3 responses
Familiarity with
process
52%
40%
Type of
outcome
Cost
Additional responses
25%
Relationships
Additional responses
25%
Relationships
25% Industry Practice
25% Industry Practice
2% Other
2% Other
Lawyers
0
0
•• Rather than rehearsing tired arguments about lawyers not
promoting ADR for fear of its impact on their revenues, the data
suggests that the underlying issue is more closely linked to
something beyond training and education – familiarity. Have
law schools and professional training regimes prepared today's
dispute resolution lawyers adequately for the role that Parties
wish them to perform? Are Providers and Influencers creating
•• This circles back to the discussion about the challenge to
traditional notions of the zealous advocate, fighting her client's
corner tenaciously. The 21st Century dispute resolution lawyer
needs to deliver (or to work with others to deliver) what Parties
want: dispute resolution process design, collaboration to
pursue efficient outcomes, as well as traditional tough
representation when called for.
sufficient incentives for lawyers to gain real mediation or
conciliation experience post qualifying? More fundamentally,
what are the cultural expectations around what it is to be a
lawyer, advocating for a client?
16
Q3.5 Which stakeholders have the potential to be most influential in bringing about change in commercial dispute resolution practice?
6
42%42%
Top 3 responses
In-house
lawyers
41%
37%
Adjudicative
Providers
Governments/
ministries of
justice
Additional responses
33%
External lawyers
27% Parties
20% Non-adjudicative Providers
1% Other
•• Who can facilitate and drive change? Parties are clear that they
have a key role to play, identifying in-house lawyers as the
group with the potential to be most influential in bringing
about change in commercial dispute resolution practice. The
stakeholder groups overall are less clear in identifying this
opportunity, yet when asked what innovations and trends are
going to have the most significant influence on the future of
commercial dispute resolution, they are quick to recognise
•• Of course many parties to commercial disputes will not have
the benefit of in-house legal resources, so they will need to rely
on a new generation of lawyers to assist them, trained in the
right skills as law school syllabuses evolve. With the lawyers of
generation Y, millennials and generation Z growing into
positions of influence within corporates and throughout the
dispute resolution community, the concept of collaboration in a
way that would have been unthinkable to litigators of a
changes in corporate attitudes to conflict prevention.
generation ago may already be an accessible reality to a
community grown up on crowd-funded solutions and sharing
through social media.
•• How might such changes be effected? An emphasis on the
critical role of in-house counsel seems like a sound place to
start and research from long before the GPC provides insights
into how organisations can change, and the critical role
in-house counsel have in driving that change
7
.
•• For example, traditional notions of confidentiality that
underpinned arbitration and ADR processes may have far less
significance for generations that have grown up professionally
and personally with a technology-driven information-sharing
culture. The willingness to engage in formal dispute resolution
processes over periods of years (particularly in jurisdictions
based on extensive discovery/disclosure) may be challenged
by decision-makers who are used to proceeding with business
and life at an ever faster pace.
6 Based on the votes of Parties only.
7 "The Inside Track – How blue chips are using ADR", Herbert Smith (legacy), 2007, available at http://hsfnotes.com/adr/key-adr-publications.
17
"The GPC Series was a fantastic opportunity for us to gather truly
global perspectives on what changes need to be made to improve
dispute resolution. One of conclusions is that while the need for
change is recognised, most people think someone else has to make
the change happen. So who is going to make the change happen?
As in-house counsel rethink how they resolve disputes, there is
an opportunity to embrace the acceptance that collaboration
brings results. That means drawing on the skills, experience and
perspectives of different people to design optimal solutions. It also
means considering alternative resolution approaches rather than
the traditional adversarial one.
In my view, In-house counsel is best placed to facilitate this
change, as they own the problem. Disputes are generally not
an academic exercise but are about protecting corporate value.
In-house counsel has the right to demand change as custodian of
this value and they also have the ability to drive change as they
hold the purse strings. They represent a key link between the legal
world and the commercial one, balancing the need for effective
dispute resolution with the hard-earned experience of how best to
get results.
Our expectation is that a new generation of lawyers who have
grown up in an information sharing culture will embrace such
an approach and that dispute resolution will become more cost
effective, flexible, faster and fairer."
John Fisher
Partner and Global & UK Disputes Leader, PwC
T +44 (0)20 7212 6284
E john.j.fisher@uk.pwc.com
18
Regional Differences
The cumulative global voting data on the Core Questions has already revealed
some surprising insights and perspectives. However, the great potential of the GPC
has always been to dig deeper into the data and seek to understand whether views
are genuinely homogeneous on a global basis or, as intuition might suggest, subject
to regional variations.
We identified some regional groupings to see if any trends emerged.
Our initial data analysis shows some fascinating differences which provides
the platform for more detailed investigations.
The regional groupings analysed were:
Oceania
North
America
Asia
UK
USA (Baltimore,
Austin, Los Angeles,
Miami, New York,
San Francisco) and
Canada (Toronto)
Singapore,
Hong Kong,
London
7
Australia (Sydney)
and New Zealand
(Auckland)
Thailand (Bangkok)
and India (Chandigarh)
Continental
Europe
Africa/
Middle East
Latin
America
France (Paris),
Germany (Berlin),
Nigeria (Lagos),
South Africa (Johannesburg),
UAE (Dubai)
Brazil (Sao Paulo),
Guatemala (Guatemala City),
Mexico (Mexico City)
Italy (Florence), Netherlands
(Amsterdam), Poland (Warsaw),
Spain (Barcelona and Madrid)
and Switzerland (Geneva)
7 The UK sits in a unique position as a pro-ADR common law jurisdiction yet (currently) part of the EU and exposed to civil law influences.
19
19
1. Desire for increased regulation in Asia
Delegates were asked about the areas which would most improve commercial
dispute resolution. Globally, the two top choices (with virtually identically weighted
votes) were (i) the use of legislation or conventions that promote recognition
and enforcement of settlements, including those reached in mediation and (ii) the use
of protocols promoting non-adjudicative processes before adjudicative processes.
Q4.1
Who has the greatest responsibility for taking action to promote better access to
justice in commercial dispute resolution?
Q3.3 Which of the following areas would most improve commercial dispute resolution?
Use of protocols promoting
55%
non-adjudicative processes before
adjudicative processes
59%
38%
49%
52%
36%
55%
Legislation or conventions that
promote recognition and enforcement
of settlements, including those
reached in mediation
37%
42%
48%
41%
64%
61%
51%
Oceania
North
America
Asia
Continental
Europe
UK
Africa/
Latin
Middle East
America
•• However, when the voting data was segmented along regional
lines, some significant differences emerged. The votes in Asia
were massively concentrated in favour of legislation or
conventions, scoring far higher than the use of protocols
promoting non-adjudicative processes. Africa/Middle East and
Latin America seemed to also prefer legislation to promote
processes, in Asia, than it does about issues of enforcement.
While there have been significant initiatives to promote ADR
usage in the region with Hong Kong's Practice Direction 31 of
2010, and major investments in Singapore to develop domestic
and international mediation bodies, there may be an
underlying question about whether non-adjudicative ADR like
enforcement, but less strikingly. The remaining regions show a
mediation has yet become a sufficiently robust way of resolving
starkly different picture, with the use of protocols strongly
preferred to legislation (save in Continental Europe,
where the votes were about equal).
disputes. That enforcement of mediated settlement
agreements could help optically to evidence the status and
value of mediation, is perhaps the key point.
•• This triggers some interesting questions, not least because the
near universal experience in practice is that agreements
reached at mediation are only exceptionally not performed.
If that is the case, why would Asian delegates be in favour of
legislation and the need for enforcement of mediated
settlements? A possible answer is that the data reveals more
about attitudes to ADR, particularly non-adjudicative
8 ADR in Asia Pacific series (Herbert Smith Freehills 2015-2017) https://www.herbertsmithfreehills.com/latest-thinking/adr-in-asia-pacific-spotlight-series. These explore, through interviews and
market surveys, the developing trends in Hong Kong, Singapore and Indonesia.
20
2. Is efficiency the priority everywhere?
Delegates were asked which of a range of underlying demands will have the most
significant impact on future policy-making in commercial dispute resolution.
•• On the cumulative global results, there was a clear winner –
the demand for increased efficiency of dispute resolution
processes including through technology. Yet when the results
were sorted regionally, a major difference of priorities
emerged. All regions except Asia chose efficiency as their top
demand and by a significant margin. This included the common
law regions (UK, North America, Oceania) and the civil law
•• In reality, consensual processes like mediation and conciliation
are commonplace in civil law Asian countries, and they are
supported in Asia's key common law jurisdictions too.
The premium on enforceability may go more to the credibility
and robustness of the process. UNCITRAL's proposed convention
on the enforceability of mediated settlement agreements will,
it seems, be welcomed in Asia. Systems that recognise
region of Continental Europe.
outcomes internationally reassure parties embroiled in
cross-border disputes that the outcome will be simple to
enforce. This is being put in ever sharper focus as China's Belt
and Road Initiative gathers pace, where one proposal on the
table is for disputes arising under the initiative to be mediated
first, before proceeding to arbitration.
Q4.4
•• In Asia, the leading choice was again the demand for certainty
and enforceability of outcomes. Is this a reflection of the
regional desire for legislation and a convention on enforcement
of settlements, identified above? Or is the demand for
legislation and a convention a reflection of a deeper regional
(and perhaps cultural) preference for a dispute resolution
process that gives a clear answer? Do negotiation-based
processes like mediation pose particular challenges in Asia
where decision-making hierarchies and the desire not to lose
'face' make it culturally and practically more difficult to engage
with the flexibility of mediation?
Which of the following will have the most signi cant impact on future policy-making
in commercial dispute resolution?
Q4.4 Which of the following will have the most significant impact on future policy-making in commercial dispute resolution?
Demand for increased e ciency of
78%
dispute resolution processes
including through technology
62%
80%
71%
61%
69%
64%
Demand for certainty
and enforceability
of outcomes
41%
50%
55%
43%
65%
48%
56%
Asia
Oceania
Continental
Europe
North
UK
Africa/
Latin
Middle East
America
America
21
3. Awareness and Attitudes in Continental Europe
A regional analysis of a series of related questions indicate an interesting potential
divergence in attitudes to conflict resolution in Continental Europe as compared with
other regions.
0
Q2.4
•• Delegates in Continental Europe identified that the
stakeholders primarily responsible for ensuring parties
involved in commercial disputes understand their dispute
resolution process options are in-house lawyers.
In all other regions, save for Latin America which is also a civil law
region, delegates identified external lawyers as equally or more
responsible for this critical role.
Who is primarily responsible for ensuring parties involved in commercial disputes understand their
process options, and the possible consequences of each process before deciding which one to use?
Who is primarily responsible for ensuring parties involved in commercial disputes understand their
process options, and the possible consequences of each process before deciding which one to use?
Q2.4 Who is primarily responsible for ensuring parties involved in commercial disputes understand their process options, and the possible
consequences of each process before deciding which one to use?
>
>
65%
60%
54%
48%
In-house Lawyers
69%
53%
60%
60%
70%
68%
56%
External Lawyers
59%
69%
58%
Asia
Oceania
Continental
Europe
North
America
UK
Africa/
Middle East
Latin
America
0
•• Building on this, when in Session 3, Q1 delegates were asked
about the main challenges or obstacles parties face when
seeking to resolve commercial disputes, the delegates in
Continental Europe and Latin America again stood out.
They identified insufficient knowledge of options available to
delegates in all other regions were clear that financial or time
constraints were the main obstacles. This may reflect the fact
that adjudicative dispute resolution in the public courts of civil
law jurisdictions is relatively less expensive than in many other
jurisdictions (certainly common law jurisdictions).
Q3.1
What are the main obstacles or challenges parties face when seeking to resolve commercial disputes?
resolve disputes as the most significant challenge, where
Q3.1 What are the main obstacles or challenges parties face when seeking to resolve commercial disputes?
Insu cient knowledge of options
available to resolve disputes
57%
35%
45%
50%
51%
55%
64%
>
56%
66%
73%
66%
Financial or
time constraints
63%
49%
68%
I
I
Asia
Oceania
Continental
Europe
Africa/
North
UK
Latin
Middle East
America
America
22
•• When the delegate responses to Session 4, Q5 are analysed,
(what innovation/trends are going to have the most significant
influence on the future of commercial dispute resolution?) the
Continental European delegates again stand out. In all regions
other than Continental Europe the message is clear: a greater
emphasis on collaboration rather than adversarial processes is
required. In Continental Europe, however, by far the most
significant innovation is identified as changes in corporate
attitudes to conflict prevention. The fact that Latin America
voted differently to Continental Europe suggests that this is not
a civil law versus common law issue.
Q4.5
What innovations/trends are going to have the most signi cant in uence on the future
of commercial dispute resolution?
Q4.5 What innovations/trends are going to have the most significant influence on the future of commercial dispute resolution?
Greater emphasis on collaborative
instead of adversarial processes for
resolving disputes
52%
60%
59% 64%
64%
62%
62%
63%
42%
42%
43%
Changes in
corporate attitudes to con ict
prevention
49%
56%
56%
Continental
Europe
UK
Asia
Oceania
Africa/
North
Latin
Middle East
America
America
•• Pulling these points together, a picture emerges of Continental
Europe marching to a different beat to other regions. It seems
to be looking for in-house lawyers to drive change in corporate
attitudes to conflict prevention. Yet these lawyers are
simultaneously battling with a lack of knowledge of dispute
resolution process options to effect that change. All the while
the global drive for more collaboration seems to be at its
weakest in Continental Europe. The experience of relatively
cheap (but often slow) litigation in the public courts of civil law
jurisdictions in Continental Europe may have driven delegates
away from voting for efficiency and collaboration. It may also
be a reflection on the different weight given to legal
departments in some civil law jurisdictions, where greater
emphasis is placed on the difference between jurists
and external lawyers.
23
Perspectives in the UK – the legacy of the Woolf Reforms?
A series of questions showed that the delegates at the GPC series finale in London
in July 2017 held some significantly progressive views. It may be that as the 20th
anniversary of Lord Woolf's sweeping reforms to the English civil justice system
arrives, the effects of a generation of Parties brought up with ADR embedded in the
fabric of commercial dispute resolution are in evidence.
•• When lawyers recommend dispute resolution procedural
options to parties [Session 1, Q3], London delegates found the
type of outcome requested by the party most influential,
unlike all other regions which reported familiarity with a
particular type of process as the most influential factor.
Q1.3 When lawyers (whether in-house or external) make recommendations to parties about procedural options for resolving commercial
disputes, which of the following has the most influence?
The type of outcome requested
by the party
55%
52%
61%
55%
53%
53%
53%
Familiarity with a particular type
of dispute resolution process
60%
58%
58%
64%
61%
54%
55%
Asia
Oceania
Continental
Europe
North
UK
Africa/
Latin
Middle East
America
America
•• Delegates in London were by far the clearest in identifying that
equivalent significance, except for North America where the
the parties to commercial disputes typically want lawyers to
tradition of zealous advocacy on behalf of clients was readily
work collaboratively with parties to navigate the dispute
resolution process [Session 1, Q5]. In other regions delegates
viewed the role of lawyers as advocates as being of broadly
apparent in the preference for lawyers advocating on behalf
of clients.
24
Q1.5
What role do parties involved in commercial disputes typically want lawyers
(i.e. in-house or external counsel) to take in the dispute resolution process?
What role do parties involved in commercial disputes typically want lawyers
(i.e. in-house or external counsel) to take in the dispute resolution process?
Q1.5 What role do parties involved in commercial disputes typically want lawyers (i.e., in-house or external lawyers) to take in the dispute
resolution process?
Speaking for parties and/or
advocating on a party's behalf
55%
60%
64%
72%
60%
49%
57%
Working collaboratively with parties to
navigate the process. May request
actions on behalf of a party
61%
78%
63%
62%
67%
58%
64%
Asia
Oceania
Continental
Europe
North
UK
Africa/
Latin
Middle East
America
America
0
•• When delegates were asked about the main obstacles or
challenges parties face when seeking to resolve commercial
disputes, insufficient knowledge of the options available was
far lower in the UK than in other regions
Q3.1
What are the main obstacles or challenges parties face when seeking to resolve commercial disputes?
Q3.1 What are the main obstacles or challenges parties face when seeking to resolve commercial disputes?
Insu cient knowledge of options
available to resolve disputes
57%
35%
45%
50%
55% 64%
51%
Asia
Oceania
Continental
Europe
North
UK
Africa/
Latin
Middle East
America
America
0
•• While the Woolf Reforms have been widely celebrated as an
enlightened step forward in the administration of civil justice,
it seems the GPC data may be providing some real evidence of
how changes in civil procedure to promote ADR can bring about
progressive attitudes among a generation of Parties.
25
Word Clouds from around the Globe
An analysis of the word clouds generated at selected GPC events gives a sense of the different priorities and moods of the delegates.
Session 1: What words would you use to describe a sophisticated commercial party?
LONDON
[�
STRATEGIC
NEW YORK
00
j
�
EXPERIENCED
EFFICIENCY
DEMANDING
PARIS
CHANDIGARH
UNDERSTANDING
STRATEGIC
PREPARED
FLEXIBLE
EXPERIENCED
EXPERIENCED
REALISTIC
TIME
COST
EFFICIENT
INFORMED
COLLABORATIVE
/
J
-: �
SAN FRANCISCO
HONG KONG
00
r
STRATEGIC
MADRID
EFFICIENT
�
PREPARED
KNOWLEDGEABLE
DEMANDING
LAGOS
KNOWLEDGE
KNOWLEDGEABLE
DEMANDING
EXPERIENCED
COMMERCIAL
EFFICIENT
EXPERTISE
JUDGMENT
EXPERIENCED
ADVANTAGED
COMPLEX
/
SINGAPORE
SAO PAULO
�
OUTCOME
COLLABORATIVE
_J
___/
�
NEGOTIATOR
FLEXIBLE
EFFICIENT
JOHANNESBURG
SYDNEY
CONTROL
FLEXIBLE
PROCESS
INFORMED
PREPARED
EXPERIENCED
EFFICIENT
DECISIVE
EFFICIENT
PRAGMATIC
EXPERIENCED
Session 2: What words would you use to describe what can be done to exceed parties' expectations?
LONDON
[�
EFFICIENCY
SPEED
PARIS
NEW YORK
CHANDIGARH
LISTENING
FLEXIBILITY
�
EFFICIENCY
�
j
EFFICIENCY
MEDIATION
CREATIVITY
RECOGNITION
TRAINING
COMMUNICATION
CONTROL
FAIR
RESOLUTION
DISPUTE
COST
/
J
-:
SAN FRANCISCO
HONG KONG
�
�
�
r �
FLEXIBILITY
MADRID
EFFICIENCY
CREATIVITY
LISTENING
EFFICIENCY
LAGOS
PROFESSIONALISM
EFFICIENCY
COMMUNICATION
SPEED
FLEXIBILITY
EFFICIENCY
QUALITY
SPEED
_J
CERTAINTY
CLARITY
SPEED
SINGAPORE
�
EFFICIENCY
SAO PAULO
KNOWLEDGE
UNDERSTANDING
PATIENCE
PROCESS
_J
___/
�
RESULT
EFFICIENT
QUALITY
JOHANNESBURG
SYDNEY
EFFICIENCY
COMMUNICATION
PROCESS
LISTENING
COLLABORATION
SPEED
EFFICIENCY
RESPONSIVENESS
26
Session 3: What words would you use to describe the most common impediments that keep parties from resolving their disputes?
LONDON
�
[�
LAWYERS
I
NEW YORK
EGO
EMOTION
IGNORANCE
PARIS
CHANDIGARH
IGNORANCE
MONEY
EGO
ABSENCE
MONEY
PRIDE
MISINFORMATION
IGNORANCE
DELAY
KNOWLEDGE
.:
LAWYERS
TIME
J
-: �
SAN FRANCISCO
x
HONG KONG
MADRID
EGO
MONEY
1 x
EMOTIONS
IGNORANCE
MONEY
LAGOS
CONFIDENCE
EGO
STUBBORNNESS
COSTS
INTRANSIGENCE
IGNORANCE
FEAR
PRIDE
LAWYERS
COST
CULTURE
/
SINGAPORE
x
SAO PAULO
EGO
�
UNFAMILIARITY
CULTURE
_J
___/
�
MISTRUST
KNOWLEDGE
JOHANNESBURG
SYDNEY
PRIDE
EMOTIONS
MINDSET
IGNORANCE
UNREASONABLE
EGO
MINDSET
COSTS
ADVERSARIAL
UNREALISTIC
REPUTATION
Session 4: What words would you use to describe the changes to focus on in the future?
LONDON
[�
TECHNOLOGY
I
EDUCATION
PARIS
NEW YORK
CHANDIGARH
FLEXIBILITY
EFFICIENCY
COLLABORATION
EDUCATION
MEDIATION
TRAINING
TRANSPARENCY
MEDIATION
TECHNOLOGY
COLLABORATION
ACCOUNTABILITY
AWARENESS
EDUCATION
LEGISLATION
/
J
-:
SAN FRANCISCO
HONG KONG
r
EFFICIENCY
MADRID
EDUCATION
FLEXIBILITY
EDUCATION
ACCESS
LAGOS
EFFECTIVENESS
LEGISLATION
TECHNOLOGY
EFFICIENCY
INNOVATION
LEGISLATION
OBLIGATION
PUBLICITY
EDUCATION
AWARENESS
TECHNOLOGY
/
SINGAPORE
SAO PAULO
EDUCATION
EDUCATION
TECHNOLOGY
MINDSET
_J
CULTURE
KNOWLEDGE
___/
JOHANNESBURG
SYDNEY
LEGISLATION
INFORMATION
EDUCATION
TECHNOLOGY
EFFICIENCY
EDUCATION
DETERMINATION
ACCREDITATION
LEGISLATION
TRAINING
27
27
Appendix 1
Members of the GPC Academic Committee
Prof. Barney Jordaan (Belgium)
Ms. Emma-May Litchfield (Australia)
Dr. Amel Abdallah (Oman)
Prof. Amel Kamel (Oman)
Dr. Dalma R. Demeter (Australia)
Prof. Lela Love (USA)
Prof. Ann-Sophie De Pauw (Belgium & France)
Prof. Ian MacDuff (New Zealand)
Dr. Remy Gerbay (UK & USA)
Prof. Peter Phillips (USA)
Dr. Geneviève Helleringer (France & UK)
Prof. Alan Rycroft (South Africa)
Ms. Danielle Hutchinson (Australia)
Prof. Donna Shestowsky (USA)
Prof. Joel Lee/Lee Tye Beng (Singapore)
Prof. Alain Laurent Verbeke (Belgium)
28
Contacts
Alexander Oddy
GPC Executive Board Member
Partner, Herbert Smith Freehills
T +44 20 7466 2407
E alexander.oddy@hsf.com
Jeremy Lack
GPC Series Co-ordinator
Attorney-at-Law & ADR Neutral
T +41 79 247 1519
E jlack@lawtech.ch
John Fisher
Partner and Global & UK Disputes Leader, PwC
T +44 20 7212 6284
E john.j.fisher@uk.pwc.com
Michael McIlwrath
GPC Series Chair
Global Chief Litigation Counsel, Litigation, GE Oil & Gas
Director of IMI
T +39 34 8287 3019
E michael.mcilwrath@ge.com
Deborah Masucci
GPC Advisory Board
IMI Chair
T +1 646 670 7224
E deborah.masucci@imimediation.org
Anita Phillips
GPC Advisory Board
Professional Support Consultant
Herbert Smith Freehills
T +852 2101 4184
E anita.phillips@hsf.com
29
Notes
30
31
32
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