The use of mediation appears to continue to grow in popularity internationally to an exponential degree. As this expansion continues, it is important to maintain a constant dialogue about the role of mediation across the globe and its impact, different approaches, and the challenges faced within different jurisdictions. The 2014 edition of the IMI Shaping IDR Convention featured panels of experts in a number of fields related to mediation, with delegates participating by answering a number of poll questions, the results of which were presented globally and grouped together and separated into five delegate categories (Users [18%], Advisors [28%], Providers [38%], Educators [8%], or Other [9%]). These various opinions proved fascinating as they displayed a number of different “schools” of thought within the field amongst the different relationships to mediation.
International Dispute Resolution: What do Users need?
Setting the stage for the remainder of the day, Session 1 focused on the most important demographic of mediation: the Users. Interestingly, while in some areas the answer profiles for other groups matched those of the Users, in several cases there were moderate discrepancies in opinion between Users and other groups, perhaps signifying areas of further discussion and debate. For example, Question 1.2 asked “Why is mediation used so seldom?” and with little exception, all groups agreed with the answer “One of the parties is not familiar or experienced with mediation”. Alternatively, while Users overwhelmingly finished the phrase “The most important factor in influencing how effectively a company uses ADR is…” with “The skills and approach of in-house lawyers” at 60%, whereas other groups only rated this in single-digit importance.
Innovations in IDR: What are Service Providers offering?
A significant message for Providers was the negative feedback from the Users. Most notably, Question 2.1 was “ADR institutions have been providing innovative solutions to respond proactively to users’ needs” (to be answered with Agree, Neutral, or Disagree). Interestingly, and perhaps obviously, a large number of Providers agreed with that statement, some were neutral, and few disagreed. However the User profile shows the exact opposite: the majority disagreed, some were neutral, and very few agreed. This suggests that there might need to be an ongoing dialogue between Users and Providers to ensure that in the future, this question is answered with more of a consensus to improve satisfaction for both groups.
Expanding the Use of Mediation: Process Design (Options, Technology, Hybrids, and Enforcement)
Straying slightly from the theme of the first two sessions, Session 3 focused more on preferences within mediation and arbitration. While the questions started off basic, a number of follow-up polls included specifications that required a deeper level of thought from participants in order to really consider the different variables that change the approaches towards mediation. At first, delegates were shown four quadrants (Facilitative Non-Evaluative [Mediation A], Directive Non-Evaluative [Mediation B], Facilitative Evaluative [Conciliation], Directive Evaluative [Arbitration]) and were asked where they would want to start an ADR process. Around 65% of participants chose either Mediation A or Mediation B, showing perhaps more division in opinion about the style of the mediator than anything else. Further questions involved the use of two neutrals (who would fall under different quadrants) and the “changing hats” of a neutral from mediator to arbitrator, both of which questions had fairly distributed answers. However the attendees (from a range of experiences and backgrounds) seemed to reach a majority consensus for the last question, which was in statement form: “An international convention is needed to ensure that any mediated settlement agreement reached in this case could be automatically recognised and enforced in all signatory countries”, with which almost 75% of delegates agreed. Interestingly, when asked about the use of ODR platforms (Online Dispute Resolution) for small value cases, almost 40% of respondents said they would be willing to use this method. This number dropped, however, when participants were asked about the use of ODR in large sum cases.
Using Mediation in Diverse Fields: Overcoming Obstacles
Mediation, of course, takes place across a number of fields, including international Trade and Investment, Regulatory and Financial, Intellectual Property, and Art Law. Some of these require additional specifications relevant to the respective field. Most delegates (72%) acknowledged that mediation is suitable for responding to a variety of disputes, including piracy and other Intellectual Property issues, and disputes involving issues of national heritage (referring to art). A less-resounding majority believed that governments should provide free mediation services globally, a statement which was disagreed with largely by the Users group. The real division existed in Question 4.6: “In international disputes, arbitrators should always be empowered to make binding decisions based solely on what is fair and equitable (possibly ignoring applicable laws), unless the parties expressly agree otherwise”. Less than 10% of the respondents held a neutral view towards this statement, whereas the remainder were divided evenly between agreeing and disagreeing.
The Future of IDR: What can we conclude?
Having spent the first four sessions discussing the different aspects of IDR, the final panel rounded out the day with a discussion that built on the previous by generating ideas of what lies ahead. Although shorter in time than the other sessions, a clear consensus appeared that the success of ADR lies in the continued dialogue between the different groups involved in the process.
CEDR will honour this with its own international seminars in 2015 addressing such cross-jurisdictional issues.
To view the complete results from the Convention, please click here.
 Note: Percentages are out of approximately 150 attendees. These numbers changed during sessions throughout the day, likely due to participants coming and going between sessions. The changes were minimal, and for the purposes of this article, they will be assumed to remain constant throughout the day.
By Leah Oppenheimer