The International Institute for Conflict Prevention and Resolution (“CPR”) and the Centre for Effective Dispute Resolution (“CEDR”) on April 4 issued a joint Report: “Insights into Alternative Dispute Resolution.”
As described in an accompanying Press Release and Summary, the 10-page Report “largely consists of two studies conducted over the last 12 months supported by both organizations: a survey of the attitudes and dispute resolution practices of a cross-section of CPR’s corporate members and contacts; and a separate survey, undertaken by [London-based] CEDR, to audit the experience and attitudes of commercial mediators in both the US and UK markets.”
Core Findings: CPR Corporate Counsel Survey
The Report is based on a survey sent to the corporate counsel of large – $15 billion and over – businesses. Reponses were received from 90 individuals, “not enough to yield statistically significant results in every instance, but sufficient to produce some useful and interesting insights into the state of the marketplace.” Here are the key findings, presented essentially verbatim:
- All of CPR’s survey respondents reported having been involved in some forms of dispute over the previous five years.
- Dispute resolution methods used were: litigation (88%); negotiation (86%); mediation (82%); and arbitration (82%).
- Respondents reported having been involved in an average of 10 arbitrations and 21 mediations per corporation over the past five years, with about 50% of arbitrations and 17% of mediations involving cross-border disputes.
- As for the preferred method of dispute resolution, the Report states: “Arbitration and mediation were preferred to litigation. For both domestic and cross-border disputes, direct negotiation was the most preferred route (although surprisingly below 60% in each instance). Arbitration was slightly favored over mediation for domestic disputes but there was an overwhelming preference for arbitration over mediation to resolve cross-border disputes.”
- 30% of domestic arbitrations settled through mediation, as did about 20% of cross-border arbitrations.
Core Findings: CEDR Mediation Audit
The CEDR survey of “reasonably or very experienced” professional mediators yielded interesting results, presented below essentially verbatim:
- Mediation is working: the overall success rate of mediation remains very high on both sides of the Atlantic. UK mediators report an aggregate settlement rate of 89%.
- Of the settled cases, 74% achieved settlement on the day of mediation, with a further 15% settling shortly after mediation.
- US results reflected corresponding high settlement rates, with similar success on the day of the mediation.
- Mediators were asked for their views on the performance of lawyers and clients they encountered in their mediations. In all instances, two thirds of lawyers and clients were “performing well” in mediation.
- Analysis of why commercial mediators are appointed to cases suggests that, compared to the UK, the US market for mediators is less time and price sensitive, but that there is more repeat business and referrals from lawyers who have worked with a mediator before, and a higher emphasis on mediators’ professional backgrounds. According to this research, there is a far higher proportion of lawyer-mediators in the US than the UK.
- US mediators are more likely to emphasize their profession when promoting themselves; how often it was a significant factor in their securing appointments; and, how often it turned out to be actually relevant and needed in the subsequent mediation, including assisting in reaching settlement. Most mediators reported these situations as occurring “almost always” or “frequently.”
- US mediators are ahead of their UK counterparts in terms of their fee income for a typical one-day case. In the UK, the audit reported that their average fee was $4,715, while in the US market the average was 14% higher, at $5,375.
As to how the data will be assimilated by the two institutions, the Report concludes: “The findings from this research, coming from these sources, can form the start of an on-going discussion which CPR and CEDR intend to continue to conduct with these stakeholders. The subject of this discussion must remain what the Dispute Resolution field continues to need and want, whether it be wholesale reform of processes that are no longer relevant or more subtle innovations to get the best out of methods of resolution, such as arbitration or mediation, that are working but that could perform better with further change.”
(ed: Kudos to CPR and CEDR, for touching base with constituents on ways to improve the system and for providing hard data on ADR attitudes and usage.) (SAC Ref. No. 2019-17-01)
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