GPC SG Session 5 Removing "Status-Quoism"

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GPC SG Session 5 Removing "Status-Quoism" by Mind Map: GPC SG Session 5 Removing "Status-Quoism"

1. 1. Party/Advisor Axis

1.1. Worst enemies?

1.1.1. Party

1.1.1.1. Nature of relationship can be adversarial

1.1.1.2. Financial incentives

1.1.1.3. Need to align interests

1.1.1.4. Who is in the driver's seat?

1.1.1.4.1. Engaged In-House counsel

1.1.2. Advisor

1.1.2.1. Disagrees: "Client's Best Interests" = top priority

1.1.2.1.1. Always!

1.1.2.2. Different degrees of client sophistication

1.1.2.3. Team work is key

1.1.2.3.1. In-house can be own worst enemy

1.1.2.3.2. Inconsistencies

1.1.2.4. Discrepancies in GPC data does not mean disagreement

1.1.3. Provider

1.1.3.1. Strategic choice vs. Legal Choice

1.1.3.2. Are our parties "the enemy"?

1.1.3.3. How to get people to work collaboratively

1.1.3.3.1. ICC Publication on effective in-house case management

1.1.3.3.2. Segment the case

1.1.4. Educators

1.1.4.1. Emphases on Relationships

1.1.4.1.1. Legal culture

1.1.4.1.2. Corporate Culture

1.1.4.1.3. Law Dept. Culture

1.1.4.1.4. Is this all cross-cultural?

1.1.4.2. You have to look at this systemically

1.1.4.3. Competing KPIs? (Key Performance Indicators)

1.1.4.3.1. Fees?

1.1.4.3.2. Metrics = shades of grey

1.1.5. Moderator

1.1.5.1. Early Case Assessment systems avoid these issues!

1.1.5.2. See OLE case assessment form on IMI website

1.2. Q&A

1.2.1. 30 yrs Party: schizophrenia

1.2.1.1. Many minds

1.2.1.2. Many views

1.2.1.3. Can be difficult for in-house to be clear

1.2.2. Advisor

1.2.2.1. Don't advise against your client

1.2.3. Advisor

1.2.3.1. New financial settlements: can you marry the interests?

1.2.3.1.1. One approach: Use ADR of we go elsewhere

1.2.3.1.2. Other: New financial approaches

1.2.3.2. Should we kill the billable hour?

2. 2. Influencers

2.1. Mindsets

2.1.1. Educators

2.1.1.1. Education brings changes

2.1.1.2. Optimistic in SG

2.1.1.2.1. 20 years

2.1.1.3. New law programs are creating a new generation of lawyers

2.1.1.4. New generation of "new think" partners in law firms

2.1.1.5. Some counsel are tired of "old" adversarial model

2.1.1.6. NADRAC (AU) data on effect of ADR training

2.1.1.6.1. ADR did change mindsets of large firms

2.1.1.6.2. Did not change mindsets of small firms

2.1.1.7. Danger of joint roles/swapping hats = confusion of roles

2.1.2. Advisors

2.1.2.1. UK Lord Wolf's reforms changed professional mindsets

2.1.3. Providers

2.1.3.1. Courts play a key role in changing mindsets

2.1.3.2. If judges support ADR, lawyers will support ADR

2.1.3.3. Some cases are well decided by adjudication

2.1.3.3.1. Ground-breaking cases

2.1.3.3.2. E.g., Native title precedents

2.1.3.4. Mediation v. Adjudication

2.1.3.4.1. Silo mentality

2.1.3.4.2. This is also cultural

2.1.3.4.3. Who knows best what process to use

2.1.3.5. Has Arbitration become what it was meant to avoid?

2.1.3.5.1. Reason for Wolf reforms in the UK

2.1.4. Parties

2.1.4.1. We do want an earlier assessment of the case

2.1.4.2. Judges "make the parties settle" is NOT mediation

2.1.4.2.1. But is often what parties do want

2.1.4.3. Some companies are moving back to litigation from arbitration

2.1.4.3.1. Get earlier initial case assessment

2.1.4.4. Imagine Arbitral Procedural Order No. 1 contains a mediation discussion step

2.1.4.4.1. Consensus by all: this is NOT a problem!

2.1.4.4.2. Lawyers may get upset by "due process" concerns, but is a prof. reflex (X-mode!)

2.1.4.4.3. One concern: If arbitrator is unhappy with failure to mediate, can it have an impact on non-appealable judgment

2.1.5. Q&A

2.1.5.1. Disappointment in USA with education

2.1.5.1.1. It has not changed mindsets

2.1.5.1.2. Reality of billable hours & billings was a contradiction

2.1.5.1.3. Providers

2.1.5.1.4. Not an issue: New generation of students do get it!

2.1.5.2. Arbitrators role in settlement

2.1.5.2.1. "Muscular" arbitrator

2.1.5.3. Positional-based systems v. Interests-based systems

2.1.5.3.1. Do lawyers have an interest in interest-based ADR?

2.1.5.4. Legal systems and local cultures affect how mediations happen

2.1.5.4.1. USA may have its own issues that are cultural

2.2. Skills

3. 3. Promotion

3.1. Providers

3.1.1. Need local legal culture to be receptive to ADR

3.1.2. A collaborative approach to selling processes matters

3.2. Advisor

3.2.1. Agrees

3.2.1.1. Procedural Order 1 example in arbitration = what happens regularly in UK courts

3.2.1.2. Suggests that the adjudiactive providers can do a lot more to promote ADR

3.2.1.2.1. Judges

3.2.1.2.2. Arbitrators

3.3. Party

3.3.1. Can use arbitration and mediation even when there is no conflict

3.3.1.1. "ARB-MED" in M&A situations where there is a conflict on value of intangible assets

3.3.2. This is all about risk management

3.3.2.1. Not sure that clauses for complex ADR is good

3.4. Educator

3.4.1. We need innovation

3.4.1.1. e.g., "opt-out" provisions

3.4.1.2. Use "nudge theory" to promote ADR

3.5. Show of hands 100% of room:

3.5.1. Conclusion: ADR IS NOT SUFFICIENTLY PROMOTED

3.6. Q&A

3.6.1. Promotion & hybrids: Australia allowed a new hybrid in a new field

3.6.1.1. Huge increases in use of a hybrid ADR process once promoted by local legal establishment

3.6.1.2. Requires education

3.6.2. Provider from CN

3.6.2.1. Concerns of enforceability of mediation settlement agreement

3.6.2.2. Parties prefer arbitration to mediation since there is no equivalent to the NY Convention

3.6.2.3. This is a real issue for SMEs

3.6.2.4. Mediation is not done normally: e.g., done sometimes by e-mail.

3.6.2.4.1. Flexible approach to use of mediation

3.6.2.5. Need more alternatives to how to use mediation

4. 4. Enforcement

4.1. Advisor

4.1.1. Is there a blockage/obstacle to enforcement?

4.1.1.1. This depends on local national laws

4.1.1.2. EU Directive has resolved this for EU

4.2. Party

4.2.1. Disagrees: There is a need for an international convention on the recognition & enforcement of mediation settlement agreements

4.2.1.1. IMI has a committee advising UNCITRAL on this

4.3. Educator

4.3.1. Is it an issue

4.3.1.1. There is a higher rate of compliance with mediation agreements

4.4. Q&A

4.4.1. How to simplify this?

4.4.1.1. Is it a fear due to unknown?

4.4.1.2. But perception is reality

4.4.2. Can consent awards converting mediation into arbitral awards be a solution

4.4.2.1. Party: No

4.4.2.2. Advisor: Why not?

4.4.2.3. Party: "Let's take this outside!" :-)

4.4.3. SG ARB-MED-ARB could be solution

4.4.3.1. Will increase use of mediation

4.4.3.2. Value of a convention addresses the fear factor, even if its is not objectively needed

5. 5. Change Drivers

5.1. Educators

5.1.1. Separate forest from trees

5.1.2. Flexibility + regulatory changes are needed

5.1.3. Need to go back to middle ages!

5.1.4. Educate to change minsets!

5.1.4.1. Not to change only lawyers

5.1.4.2. To change users as well

5.1.4.3. Generational and social change

5.2. Party

5.2.1. Sell me a product I discover I need!

5.2.2. Offer me a service I can tantalize my internal clients with

5.2.3. Comparative information is driving change

5.2.4. Use of technology is undersestimated

5.2.4.1. Read Susskind's "The Future of the Profession"

5.3. Advisor

5.3.1. In favour of pre-lawsuit procedural requirements

5.3.2. Information

5.3.3. Cost sanctions

5.4. Provider

5.4.1. Mandatory mediation

5.4.2. We need to trust more in people & relationships

5.4.2.1. Wrongly perceived as "soft stuff"

5.4.2.2. This is really the tough stuff!

5.4.2.3. We are afraid of relationships to we move to systems

5.5. Q&A

5.5.1. Want Arbitrators to have to be trained in Mediation & Vice-Versa

5.5.1.1. Be able to combine the 2 in the same dispute

5.5.2. Influencers/Educators are key

5.5.2.1. The educators are changing the world: better foundations = bigger and better buildings

5.5.2.2. We need to recognise & celebrate our "builders" of Noah's Ark in ADR

5.5.3. Allow mediators and arbitrators to work as a team

6. 6. Conclusions

6.1. The answer lies in dealmaking

6.2. Watch this space for more from Singapore for this hint of what is yet to come!

6.3. "Be the change you want to see in the world" M. Gandhi

6.4. GPC is starting in SG

6.5. ONWARDS SINGAPORE!