The International Mediation Institute (IMI), a body which develops global professional standards for those involved in collaborative dispute resolution, has recently published the results of an 8 week survey regarding the approaches and expectations of in-house counsel in relation to arbitration and mediation. 76 in-house counsel and senior managers from North America and Europe completed the survey, which focuses on their needs, attitudes and preferences on issues concerning information, professional quality standards and the skills they expect from arbitrators and mediators. The results indicate that the majority of in-house counsel desire independent assessment in relation to arbitrator and mediator competency, as well as more proactive encouragement from arbitration tribunals and the courts to incorporate mediation into litigation and arbitration proceedings.
Most responders were either senior in-house legal counsel (63%) or senior management (20%) in their companies with 17% indicating they were engaged in other corporate roles. 71% of responders were from corporations with over 10,000 employees, 18% were employed by companies with between 1,000 and 10,000 employees.
In relation to mediation, the survey found that:
- Past experience with mediators is seen as vital to selection decisions – whether that experience is the user’s own (97% agreed), or that of their counsel (78% agreed), or the independently assessed views of previous users (88% agreed). A high proportion (77%) of in-house counsel say they want access to the feedback of previous users. 99% of those surveyed also relied on the neutral’s past experience as a mediator in their selection process. Experience as a lawyer was less important, with just over half agreeing that this would influence their choice of mediator. A neutral’s prior expertise in the core issues of the case, however, was a determining factor for the vast majority of respondents (83%).
- Three quarters of respondents think neutrals should belong to an ADR professional institution with a public code of ethics / disciplinary processes.
- Arbitration providers are expected by three quarters of respondents to be proactively encouraging parties to mediate their disputes, and almost half go so far as saying they want courts and tribunals to make mediation a compulsory process step in litigation and arbitration.
- In terms of mediation styles, three quarters prefer neutrals to take a more pro-active (evaluative) approach, including proposing solutions and settlement options, as opposed to deploying purely facultative techniques.
- 80% of those surveyed expect their outside counsel to be trained in mediation advocacy skills. 48% felt that outside counsel may often be an impediment to the mediation process.
The survey results resonate with our experience of talking to corporate clients. In terms of mediator feedback, there are practical challenges in sharing this due to the confidential nature of the process but this should not prevent it being done (we have kept an internal mediation database for 13 years tracking mediator performance and mediation experiences). Herbert Smith Freehills has also long championed mediation advocacy as a distinct and important skill and has been training our lawyers in mediation advocacy since 2006.