In A Scandal in Bohemia, in 1891, Sherlock Holmes proclaims: “it is a capital mistake to theorize before one has data. Insensibly, one begins to twist facts to suit theories, instead of theories to suit facts“. Eighty-five years later, in his paper The Varieties of Dispute Processing tabled at the Pound Conference in April 1976, Professor Frank E.A. Sander echoed Mr Holmes’ wisdom when he asserted: “we need far better data...so that we can develop some sophisticated notion of where the main trouble spots are... And we need more data on the role played by some of the key individuals in the [dispute resolution] process e.g. lawyers”.
What goes around, comes around, but this time the interest is worldwide. To honour the 40th anniversary of the 1976 Pound Conference, the Global Pound Conference (GPC) Series 2016-17 held its inaugural event in the Singapore Supreme Court Building in March attended by some 400 delegates from 25 countries. Singapore’s Chief Justice and Senior Minister of State for Finance and Law gave the opening and closing keynotes.
The goal of the GPC Series 2016-17 is to provide the core global data needed to address the causes and remedies of user dissatisfaction with dispute resolution. To date, 38 cities in 29 countries are planning their own GPC Series event in the next 15 months, each asking the same 20 core questions on which delegates can vote electronically, with the results presented and shared instantly and publicly. The organisers have been approached by more cities expressing interest.
In the inaugural GPC event in Singapore, delegate voting in response to those 20 questions surfaced some quite dramatic and disturbing differences, particularly between the views of users and advisors. It also demonstrated some encouraging and reassuring alignment between them and other stakeholder groups.
At each GPC event, delegates can download a dedicated GPC voting app onto their smartphone or tablet. The app is populated with the 20 core GPC questions. A preliminary question asks delegates, via the app, to identify their stakeholder group – Party/User, Advisor, Adjudicative Provider (arbitrator and judiciary), Non-Adjudicative provider or Influencer (e.g. educator, researcher, government). Responses to the 20 questions are then compared by stakeholder category.
In response to a question about what is the greatest influence on parties when deciding which type of dispute resolution process to use, predictably Advisors ranked legal advice top. Users, as well as both Adjudicative and Non-Adjudicative providers ranked efficiency first and rated legal advice far lower. Similarly, when asked what role Users want lawyers to take in a dispute resolution process, Advisors ranked advocacy by lawyers as the top option. In contrast, Users, and all other stakeholder groups, ranked “working collaboratively with Users” as top, with advocacy by lawyers a distant second. When delegates were asked which stakeholders have the potential to be most influential to bring about change in dispute resolution, Advisors ranked themselves in the top slot, while Users placed them practically bottom, and all stakeholders, except Advisors, rated Governments/Ministries of Justice as the most influential. Another difference was that Advisors were the only stakeholder category to rank purely adjudicative dispute resolution processes highly.
There were also some strong similarities. Thought-provokingly, all stakeholder groups ranked the combination of adjudicative and non-adjudicative processes (e.g. arbitration or litigation with mediation or conciliation) as the most effective dispute resolution process, despite the fact that this combination is seldom offered in practice. All stakeholders were in agreement that combining adjudicative and non-adjudicative processes should be prioritised in order to improve the future of dispute resolution. All stakeholders were aligned behind the idea that the most significant influence for improving dispute resolution is legislation or conventions that promote recognition and enforcement of settlements, including those arrived at via mediation, followed by pre-litigation/pre-arbitration protocols promoting non-adjudicative processes, and cost sanctions against parties failing to try non-adjudicative processes. And all stakeholders (including Advisors) agreed that Advisors would be the group most resistant to change in dispute resolution.
The conversation has now begun in earnest. Data is being generated “glocally”. The scourge of what Professor Sander labelled “the deadening drag of status quoism” is starting to be addressed. Change is in prospect. The data harvested at the coming several dozen GPC Series events around the world will form the basis for improving the future of dispute resolution in the 21st Century.
Almost everyone should have a GPC Series event taking place somewhere nearby in the next 15 months. More information, including the core questions and the voting results to date, can be found at: http://globalpoundconference.org.
The author is very grateful to Michael McIlwrath of GE Oil & Gas and Jeremy Lack of Lawtech, respectively the Chair and Co-ordinator of the Central Organising Group of the GPC Series 2016-17, for peer reviewing this article. Their comments and improvements have all been included.