Famous US Folk singer Bob Dylan once sang " For Times they, they are a-changin'" and if the latest International Mediation survey results are any guide then the selection criteria for In House Counsel choosing mediators is also 'a-changin'. The survey of in-house dispute resolution counsel from 76 very large international corporations took place between January and March 2013. The survey focused on what criteria the In Counsel used when selecting a mediator and in particular looked into their needs, attitudes and preferences regarding quality and standards they expect from their arbitrators and mediators.
The results highlighted that almost half of the In House Counsel who responded to the survey don't consider the legal expertise of the mediator as a relevant factor when selecting a mediator. The majority of respondents felt that the core area of expertise of the mediator was a more important factor. These findings would tend to support the commentary last year of Chief Justice of the Supreme Court of NSW Mr. Tom Bathurst who said of the Australian experience:
"Within 8 years the traditional or recent forms of mediation will go by the board. It will go by the board because of the increased levels of sophistication of clients, in-house counsel and the legal profession. They know the law. They will want a commercial outcome and they will go to a commercial mediator. Arbitration and the courts will remain on a complimentary basis to resolve disputes."1
It would seem In House Counsel prefer mediators who are proactive. They want solution generation mediators that have a certain industry expertise and who do more than simply facilitate,act as a go between and/or offer a "third legal opinion".
Views of respondents were divided on whether mediation should be compulsory. Half thought external practitioners were an impediment to finding a settlement to the dispute.
Significant findings of the survey included:
- When deciding on whom to select as a mediator only 56% of respondents relied upon the mediator having experience as a lawyer whilst a further 38% were neutral on the subject;
- 85% relied upon the mediator having expertise in the core issue of the case when determining whom to select;
- 88% of respondents relied upon independent verifiedfeedback from users when deciding whom to use as a mediator;
- Only 48% surveyed felt that mediation should be a compulsory procedural step in the conduct of all commercial disputes in both litigation and arbitration whilst 37% felt it should not be compulsory;
- 77% surveyed felt mediators should not be purely facilitative but adopt a pro active idea-generating role, including proposing solutions and settlement options;
- 48% of respondents stated that outside lawyers were often an impediment to the mediation process. A further 38% were neutral. Despite the seeming lack of value they perceived in external lawyers role in mediation 78% would rely upon the views of law firms and other advisers as to their recommendations on which mediator to use; and
- 83% sought evidence that the mediator's competency had been independently assessed; and
- 80% expected their litigation counsel to be trained in mediation advocacy.
The big take away from the findings are that In House Counsel (in North America and Europe at least) are looking beyond the traditional stereotype mediators – the ex judges and lawyers who were first to dominate the mediation industry– and are increasingly preferring mediators with more expertise in the industry to which the dispute relates and who are proactive in generating solutions based upon that expertise.
So maybe Dylan's word's were true when he sang:
And the first one now
Will later be last
For the times they are a-changin'
The survey can be found at http://imimediation.org.Footnotes
1Gilbert Tobin Seminar July 2012.
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