Posted on behalf of BFOI Jacqueline Nolan-Haley (Fordham):
At the 16th Annual Fordham Conference on International Arbitration and Mediation held on November 19, 2021, the International Task Force on Mixed Mode Dispute Resolution launched the initial set of final papers by the seven working groups. The Task Force which began in 2004 responds to the increased use of mixed mode practice and the need for better understanding and guidance for parties, counsel, arbitrators, mediators, provider organizations and policymakers on norms of practice regarding the interplay between adjudicative and settlement processes.
The panel discussion with chairs and co-chairs of the working groups was moderated by Kathleen Paisley who announced that the broad goal of the conversation was to consider how the community of arbitrators and mediators can help parties and in-house counsel resolve disputes.
Highlights from the panelists include FOI Tom Stipanowich, who coined the term mixed-mode and who now refers to it as “lane-changing.” He proposed to look at the big picture—imagine that we have a multi-lane highway in dispute resolution. When you drive down the highway, when would you change lanes to unassisted negotiation? To mediation? And why? Focusing on dispute resolution clauses, Laura Kastor noted that they are often the last thing that people think about in drafting contracts. She emphasized the importance of well-tailored dispute resolution clauses in contracts. Jeremy Lack offered his views on when parties would benefit from a process facilitator to help them understand the best options for resolving their disputes. He suggested 5 factors, what he labels “drivers,” that process facilitators should discuss with the parties and their counsel: efficiency; time; risk allocation; relationships; and enforceability. Offering a mediator’s perspective, Deborah Masucci suggested that a useful tool in every mediator’s toolbox is to keep options open for parties to resist lawyers’ push to do that which is not necessarily in the best interests of clients. Be careful of labels, she warned, and be aware that some dispute resolution clauses may not be justifiable in today’s environment because they were written at a time when the parties did not have a dispute.
For Edna Sussman, to be a more effective as an arbitrator means to engage more often and deeply with the parties. Engage early she suggests and look for early dispositive motions that could help parties settle rather than wait until the end of the process to discuss settlement. Talk about whether parties might want a mediation window.
On the question of doing med-arb with the same person, Tom Stipanowich observed that “this is a minefield,” and there is no single piece of authoritative guidance through the world.
Dilyara Nigmatullina spoke about the concept of parallel mediation and the factors that should be put in place to facilitate it. Rules vary in different countries. Where, for example, Singapore legislation allows the same person to be both an arbitrator and mediator, other countries do not. With respect to sharing of information between neutrals, the working groups did not find rules addressing this practice. However, the panelists noted that when mediators and arbitrators communicate, the biggest danger is the risk of tainting the arbitral award.
Some of the final take aways from the panelists:
- engage with in-house counsel, facilitators, and arbitrators and talk with parties;
- give in-house counsel a place at the table from the beginning;
- remember that clients own the dispute and are in the best position to get a tailored approach;
- be an agent of change and work with law firms whose vision aligns with this view;
- users can get help, they don’t have to rely on their own creativity;
- two brains are better than one;
- in house counsel should examine the key drivers in each case
- be more flexible in thinking about what we mean by arbitration and mediation.
The initial set of final papers launched at the Fordham conference are intended to provide not only theoretical but practical guidance. The papers are available at: https://imimediation.org/about/who-are-imi/mixed-mode-task-force