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<xTITLE>The Times They Are a-Changin'</xTITLE>

The Times They Are a-Changin'

by Tony Dempsey
August 2013 Tony Dempsey

Famous US Folk singer Bob Dylan once sang “For Times they, they are a-changin’” and if the latest International Mediation survey results are any guide then the selection criteria for In House Counsel choosing mediators is also ‘a-changin’. The survey of in-house dispute resolution counsel from 76 very large international corporations took place between January and March 2013. The survey focused on what criteria the In Counsel used when selecting a mediator and in particular looked into their needs, attitudes and preferences regarding quality and standards they expect from their arbitrators and mediators.

The results highlighted that almost half of the In House Counsel who responded to the survey don’t consider the legal expertise of the mediator as a relevant factor when selecting a mediator. The majority of respondents felt that the core area of expertise of the mediator was a more important factor. These findings would tend to support the commentary last year of Chief Justice of the Supreme Court of NSW Mr. Tom Bathurst who said of the Australian experience:

“Within 8 years the traditional or recent forms of mediation will go by the board. It will go by the board because of the increased levels of sophistication of clients, in-house counsel and the legal profession. They know the law. They will want a commercial outcome and they will go to a commercial mediator. Arbitration and the courts will remain on a complimentary basis to resolve disputes.”

It would seem In House Counsel prefer mediators who are proactive. They want solution generation mediators that have a certain industry expertise and who do more than simply facilitate, act as a go between and/or offer a “third legal opinion”.

Views of respondents were divided on whether mediation should be compulsory. Half thought external practitioners were an impediment to finding a settlement to the dispute. Significant findings of the survey included:

1.When deciding on whom to select as a mediator only 56% of respondents relied upon the mediator having experience as a lawyer whilst a further 38% were neutral on the subject;

2. 85% relied upon the mediator having expertise in the core issue of the case when determining whom to select;

3. 88% of respondents relied upon independent verified feedback from users when deciding whom to use as a mediator;

4. Only 48% surveyed felt that mediation should be a compulsory procedural step in the conduct of all commercial disputes in both litigation and arbitration whilst 37% felt it should not be compulsory;

5. 77% surveyed felt mediators should not be purely facilitative but adopt a pro active idea-generating role, including proposing solutions and settlement options;

6. 48% of respondents stated that outside lawyers were often an impediment to the mediation process. A further 38% were neutral. Despite the seeming lack of value they perceived in external lawyers role in mediation 78% would rely upon the views of law firms and other advisers as to their recommendations on which mediator to use; and

7. 83% sought evidence that the mediator’s competency had been independently assessed; and

8. 80% expected their litigation counsel to be trained in mediation advocacy.

The big take away from the findings are that In House Counsel (in North America and Europe at least) are looking beyond the traditional stereotype mediators – the ex judges and lawyers who were first to dominate the mediation industry– and are increasingly preferring mediators with more expertise in the industry to which the dispute relates and who are proactive in generating solutions based upon that expertise.

So maybe Dylan’s word’s were true when he sang:

And the first one now

Will later be last

For the times they are a-changin'

The survey can be found at


Anthony Dempsey began his career specialising in banking litigation with national law firm Clayton Utz in 1990. Tony was the founding President and CEO of the Rugby Union Player’s Association (‘RUPA’) in 1995. He negotiated and secured on behalf of its members (the Wallabies and Super Rugby players) in 1997, 2001 and again in 2004 Collective Bargaining Agreements (‘CBA’) with their employers. These agreements regulated the employment conditions of the players. The 1997 CBA was world rugby’s first and represented a watershed in industrial relations in professional rugby worldwide.

During his time with the RUPA between 1995 and 2009 Tony was instrumental in resolving many complex high profile industrial, commercial and contractual disputes between the Associations members and their employers through a variety of methods including negotiation, mediation, conciliation, arbitration and litigation.

Tony was appointed founding Chairman of the International Rugby Players’ Association Inc in September 2001 – an organisation whose members comprise player associations from France, England, South Africa, New Zealand, Wales, Ireland and Australia. IRPA represents the employment interests of international rugby players worldwide on issues common to them – a position he held for four years.

Tony holds both a Bachelor of Law and Economics from Macquarie University (1990). Tony has completed at the Australian Graduate School of Management the Senior Management Development Course and the Advanced Negotiations Skills Program. Tony is also a accredited mediator with the Australian Commercial Disputes Centre.

Tony is a adjunct presenter at the College of Law NSW for the workshop "Negotiation and Alternative Dispute Resolution".

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Additional articles by Tony Dempsey