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Claire Broadbelt at Greenberg Traurig LLP (Moderator) led an informative panel discussion as to how Alternative Dispute Resolution (ADR) is adapting to deal with complex disputes. There was a practical focus on whether today’s disputes are more complex and if contractual ADR clauses are on the rise to respond to these challenges. The panel also considered the increase of court involvement in the settlement process and the desire of some to lean towards compulsory mediation. With the current position in England and Wales that there is no reason in principle why mediation should not be made a compulsory part of the litigation process, this was an interesting discussion on how to maximise the success of ADR procedures.

Disputes

The panel assessed why disputes are more complex today, particularly with the rise of technology disputes for which the courts did not initially have the background / expertise. The adaptation to this new framework pushed legal practitioners to higher expectations, including understanding from a technical perspective areas such as Cryptoassets and blockchain disputes, etc. The panel explained that new forms of ADR were introduced to respond to the needs of the technology sector and a willingness from the courts to support the use of ADR to resolve civil disputes more generally.

Impact of the UK ratifying the Singapore Convention on Mediation

A helpful insight was provided by the Under-Secretary of State for the Ministry of Justice, Mike Freer MP, in respect of the significance of the UK ratifying the Singapore Convention on Mediation, which he thought would encourage greater use of ADR. There were some discussions on how London is a valuable place geographically as it can provide a wide range of legal services across different jurisdictions in the world. He also discussed how he would engage with the legal sector to assist in the development of the use of ADR. The panel highlighted that the experience of ADR in England and Wales has a lot to offer in that respect and that the courts are working towards the use of ADR being a success.

Mandatory mediation

There were discussions on whether mediation should be compulsory. Using mediation to resolve disputes would forcibly enable the saving of time, costs and resources involved in courts. The panel explained that timing in mediation is key, and some assessments were made on potential risks that mediation should not be too regimented. The panel also discussed that mediation should remain a true alternative, different from the court process. The panel emphasised the need for mirroring parties’ wishes during the mediation process and the necessity to raise awareness as to how a mediation takes place in order to enhance the success of the process.

Conclusion

Mediation remains a powerful tool to open a dialogue between the parties and to avoid significant costs spent in a litigation process. The panel attributed the integration of mediation into the dispute resolution process as a response to a market which is already working well and is ambitious. The panel concluded that rarely mediation settlements unravel, as long as the code of conduct of mediators and the awareness of parties on ADR are preserved.

Panel members

Claire Broadbelt, Shareholder at Greenberg Traurig LLP

Helen Armstrong, Partner at RPC

Alex Charlton KC FCIArb, Barrister at 4 Pump Court

Jon Lang, Mediator at IPOS Mediation

Rebecca Warder, Deputy Chair and Board Member of LCAM and Head of Knowledge at Hausfeld

The Under-Secretary of State for the Ministry of Justice, Mike Freer MP