Shaping the future of dispute resolution: global themes and regional differences revealed

The Global Pound Conference series - a unique and ambitious project to inform how commercial disputes should be resolved to better serve modern business - brought together over 4000 dispute resolution stakeholders, at 28 conferences in 24 countries worldwide.

Herbert Smith Freehills, global founding sponsor of the series, has teamed up with PwC and IMI (International Mediation Institute) to identify key insights from the voting data. With a focus on the needs of in-house counsel, this ground-breaking report challenges the traditional and fundamental notions of what clients want and how lawyers should represent them in a dispute.

Global themes

Efficiency is the key priority of parties when choosing dispute resolution processes. Most dispute resolution has as its frame of reference an adversarial process (litigation or arbitration) based on asserted legal rights. Yet two thirds of in-house counsel said they require more efficiency in dispute resolution. This questions whether traditional dispute resolution processes still meet the needs of end users.

Parties expect greater collaboration from advisors in dispute resolution. Around two thirds of in-house counsel said they need to see more collaboration from their lawyers. This applies when lawyers are interacting with clients and opponents. This questions traditional notions of how lawyers should represent clients. Is the zealous advocate, fighting their client’s corner tenaciously, still required?

Global interest in the use of pre-dispute protocols and mixed-mode dispute resolution. With the data pointing towards a more collaborative and efficient approach, unsurprisingly, delegates felt that disputing parties should be encouraged to consider processes like mediation before they commence formal proceedings. The data also showed a growing desire by parties to use mediation in parallel with litigation and arbitration.

Some uncomfortable home truths for lawyers. In-house counsel were judged to be change enablers. As such, they shoulder significant responsibility to encourage their organisations (and, if necessary, their external lawyers) to consider dispute resolution options more carefully, including using processes like mediation. In contrast, 70% of global delegates said external lawyers were the primary obstacles to change in commercial dispute resolution.

Asia trends

Compared to other regions, Asian parties called for more regulation and legislation. They also valued certainty and enforceability of outcomes. This in part reflects the diverse and complex region. In-house counsel often manage disputes across several borders, where legal regimes vary from stable, tested and familiar to those that are only a decade old. This can sorely test the enforceability of a multi-country dispute.

The call for regulation and certainty is even more critical as the pace of Asian development intensifies through new trade treaties and investment funds, and massive initiatives such as the Belt and Road.

The desire for less formal processes like mediation was particularly strong in Asia and mixed-mode dispute resolution appears to be the future. With key governments along the Belt and Road looking to entrench mediation as a part of a tiered dispute resolution solution, the report's findings endorse this direction of travel.

Commenting on the report, the Chief Justice of Singapore Sundaresh Menon observed: “There is much of value that has been generated by the Global Pound Conference series and it is hoped that the findings that have been reported will inform the choices and decisions of stakeholders who are in a position to shape the dispute resolution landscape.”