The questions being raised both here and in the USA around dispute resolution are:
· Mediation, should it be considered before and instead of litigation?
There is a push from the clients … looking for rapid and effective dispute resolution,” says Richard Naimark, senior vice president of the American Arbitration Association (American Bar Association Journal 11.3.2009.), which accords with Lord Woolf’s comment (reported 22 October 2009 by Jonathan Rayner – Law Society Gazette) that litigation was intended to be used as a ‘last resort’. See also Victoria Brackett’s report in Solicitors Journal of 9th February 2010 - http://www.solicitorsjournal.com/section.asp?navcode=318 survival skills.
· Arbitrators – should they be more pro-active before the arbitration takes place?
International arbitration has ‘lost its way’, the former lord chief justice Lord Woolf told the Law Society Gazette this week (03 December 2009), as he launched a set of guidelines which will build mediation into the arbitration process.
The guidance will streamline proceedings at a time when there has been a marked increase in disputes.
It includes a ‘mediation window’ to be inserted into arbitral proceedings to make it easier for parties to come to a settlement in international arbitrations. This would enable proceedings to be adjourned so that mediation can take place at the request of the parties.
The guidance allows an arbitrator, with the parties’ permission, to give a preliminary view on the merits and issues in the case and the evidence required for a party to prevail. ‘Litigation in the commercial courts has improved, and if we aren’t careful international arbitration will suffer and be left behind because it hasn’t made changes to its procedures,’ he said.
‘Mediation and other early settlement techniques are being encouraged by the commercial court, but this is not taking place in international arbitration. If this continues clients will walk away from it.’
Echoing Lord Woolf’s sentiments above Patrick Dean, senior legal counsel at Nestlé, said: ‘We’re seeing an increase in the number of claims and everything is calling out for a more streamlined process. These rules and guidelines are timely.’
Lord Woolf’s views also accord with those of John Wilkinson of the New York State Bar Association’s Dispute Resolution Section who said in his article in the ABA Dispute Resolution Magazine (Fall 2009) “The ultimate efficiecy in resolving a dispute is settlement through mediation before any arbitration is even initiated.”
· Litigation – are cash-strapped corporations of all sizes, private individuals and others seeking to avoid litigation costs by resolving business-to-business, consumer disputes via mediation?
Lord Woolf’s comment reported above (22 October 2009 Law Society Gazette) that “he had been told by one large corporation that the cost of defending litigation was so high that it always settled cases unless there was a public interest reason not to do so.”
Ian Luke, managing director of construction company Skanska, also took the stance in relation to Lord Woolf’s comments (03 December 2009), which also echoed the comments of Richard Naimark: ‘We spend a fortune each year trying to resolve disputes. As a businessman, that’s not good. Anything that reduces the need for litigation or arbitration is worthwhile.’
