GLOBAL POUND

CONFERENCE SERIES
Global Data Trends
and Regional Differences
Contents

01 Chairman's Introduction

02 Executive Summary

05 About the Global Pound Conference (GPC) Series

06 Delegates, the Core Questions and Voting

09 Global Voting Data – The Key Themes and Observations

19 Regional Differences – Preliminary Analysis

26 Word Clouds from around the Globe

28 Appendix 1

29 Contacts
Chairman's Introduction
I am delighted to welcome you to this important report. It analyses, The GPC Series has rebooted the discussion about dispute resolution
for the first time, the voting data captured at the Global Pound and engaged all stakeholders to the debate. It is for this reason that
Conference (GPC) Series. the Global Pound Conference has evolved through its journey to
become the Global Pound Conversation. A wealth of online resources
The GPC Series has been unique in terms of scale and ambition. continues to evolve to facilitate this ongoing conversation.
The idea of surveying thousands of stakeholders engaged in dispute
resolution in a standardised way at interactive conferences was I hope you enjoy this report. As an in-house counsel responsible
conceived in 2014 by the International Mediation Institute (IMI). for managing a worldwide docket of disputes, I believe it provides
This was developed throughout 2015 and came to reality between new and practical insights. It is a springboard for more research and
March 2016 and July 2017 through 28 conferences at locations across conversations over the years to come.
the globe. The conferences were followed by an international
online survey. I urge you to visit the website at www.globalpound.org and join the
Global Pound Conversation.
This project focuses on the needs of Users (both corporate and
individual) of civil and commercial dispute resolution services.
In doing so, it has prompted a much needed global conversation
about how conflict can and should be managed in the
21st Century.

Pervasive disruptors like technology and globalisation have changed Michael McIlwrath
the business landscape almost beyond recognition. Yet dispute GPC Series Chair
Global Chief Litigation Counsel,
resolution processes have simply not caught up. This project has
Litigation, GE Oil & Gas, Director of IMI
generated actionable data to question the status quo. It has armed
us with a mandate for change and the outputs are already informing
public policy making and private dispute resolution choices around
the world.

01
 Executive Summary
The GPC Series convened more than 4,000 people at 28
conferences in 24 countries across the globe in 2016 and 2017.
Those delegates – and hundreds more who contributed data
online – voted on a series of 20 Core Questions to gather data to
inform the future of dispute resolution. This report summarises
the results of the first analysis of the global data, and identifies
four Key Global Themes and four notable Regional Differences1.
The GPC provides an opportunity for extensive research in the
years to come and conversations between stakeholders.
These early insights show the potential of the GPC data to
inform those studies and discussions.

02
The four Key Global Themes we identify are:

Efficiency is the key priority of Parties1 in choice of dispute resolution processes

Efficiency means different things to different stakeholders but this throws down a challenge to the way in which

1 traditional dispute resolution processes meet the needs of the Parties seeking dispute resolution services. Finding the
most efficient way to resolve a dispute may not always be the fastest or cheapest but it requires thought and
engagement to bring appropriate resolution in acceptable timeframes and at realistic costs.

Parties expect greater collaboration from Advisors in dispute resolution

Parties using dispute resolution services seek greater collaboration from their external lawyers when interacting with

2 them and their opponents. This represents a potential challenge to traditional notions of how lawyers should represent
clients in disputes.

Global interest in the use of pre-dispute protocols and mixed-mode dispute resolution
(combining adjudicative and non-adjudicative processes)

3 As global understanding of and interest in non-adjudicative dispute resolution processes grows, there is near universal
recognition that Parties to disputes should be encouraged to consider processes like mediation before they commence
adjudicative dispute resolution proceedings and that non-adjudicative processes like mediation or conciliation can
work effectively in combination with litigation or arbitration.

In-house counsel are the agents to facilitate organisational change. External lawyers are
the primary obstacles to change

4
The data shows a broad consensus that in-house counsel should encourage their organisations to consider their dispute
resolution options more carefully, including using non-adjudicative processes like mediation and conciliation. External
lawyers are reported to be – and perceive themselves to be – resistant to change, but a new generation of in-house
counsel will challenge this resistance.

1 See page 6 for definitions

2 The raw data for these votes as provided by the technology provider, PowerVote, can be found here:
http://globalpound.org/wp-content/uploads/2017/11/2017-09-18-Final-GPC-Series-Results-Cumulated-Votes-from-the-GPC-App-Mar.-2016-Sep.-2017.pdf 03
 The four Regional Differences we identify are:

Desire for increased regulation in Asia

Stakeholders in the Asian jurisdictions voted consistently in ways that highlighted the role of legislation or

1 international conventions to promote the enforcement and recognition of settlements. Since practical
experience rarely reveals difficulties with enforcement, this regional trend may be an indicator that a more
developed regulatory framework would assist acceptance and use of non-adjudicative dispute resolution
processes like mediation and conciliation.

Efficiency the priority – except in Asia

When the global data was segmented by regions it was clear that efficiency was the key priority in all

2 regions except Asia, where the key priority was the certainty and enforceability of outcomes. This may
indicate an important underlying difference about how stakeholders in Asia perceive non-adjudicative
dispute resolution processes.

Continental Europe marches to a different beat

Delegates at the Continental European conferences voted differently to all other regions when it came
to the relationship between in-house counsel and external lawyers in changing dispute resolution habits.

3 This revealed a conundrum in Continental Europe where delegates indicated that in-house counsel were
looking to drive change in corporate attitudes to conflict prevention while battling with a lack of knowledge of
dispute resolution options to effect that change. There was less emphasis on collaboration in this region too.

The legacy of the Woolf Reforms – visible in the UK

Lord Woolf's ground-breaking reforms to the civil justice system in England and Wales in the late 1990s
embedded the role of ADR in the case management of civil litigation. Nearly 20 years on, the data from the

4 London GPC Series finale reveals well-informed in-house counsel familiar with dispute resolution processes,
focused on collaboration and efficient dispute resolution using non-adjudicative processes in pre-action
protocols and mixed-mode dispute resolution.

04
About the GPC Series
The GPC Series takes its name from the original Pound Conference in St Paul,
Minnesota, USA in 1976. Named in honour of Roscoe Pound, the reforming Dean
of Harvard Law School in the 1920s and 30s, the theme was "Agenda for 2000 AD
– The Need for Systematic Anticipation". This event led to many changes in the
US justice system, including the creation of the 'multi-door courthouse' and the
advent of alternative dispute resolution processes like mediation.

Forty years on from the original 1976 Pound Conference, dispute The GPC Series was conceived and led by the International
resolution has reached an impasse. The stakeholders in the Mediation Institute (IMI), a non-profit public interest initiative
dispute resolution field around the world are fragmented and which seeks to promote and improve the use of mediation
there is a lack of reliable, comparative and actionable data to worldwide. The GPC Series' Founding Diamond Global sponsors
enable the supply side of the dispute resolution market to fully were Herbert Smith Freehills and the Singapore International
meet Parties’ needs, both locally and transnationally. The GPC Dispute Resolution Academy (SIDRA). PwC was a Global Platinum
Series represented a timely opportunity to reassess the dispute sponsor, with JAMS a Global Gold sponsor, and AkzoNobel, the
resolution landscape and ask stakeholders all across the world American Arbitration Association/ICDR, the Beijing Arbitration
what they think needs to change. Commission (BAC), the China International Economic and Trade
Arbitration Commission (CIETAC) and Shell all Global Silver
The entire dispute resolution industry was represented at the sponsors. They were joined by 54 Global Partners and over
conferences including commercial parties, lawyers, experts, 100 organisations who supported the GPC Series locally.
chambers of commerce, academics, judges, arbitrators,
mediators, conciliators, policy makers and government officials.
Using a bespoke voting and feedback App, including multiple
choice and open text questions, delegates gave their views on
what Users of dispute resolution need and want locally and
globally. The series generated considerable data and created
an opportunity to identify trends and preferences in a way
that has not been possible previously.

Global Sponsors

Diamond sponsors: Platinum sponsors: Gold sponsors:

Silver sponsors:

05
Delegates, the Core Questions
and Voting
While the GPC Series was about much more than data gathering, the heart of each
conference was the delegates voting on 20 multiple choice Core Questions. These were
developed with the assistance of the GPC Academic Committee (see Appendix 1 for
its members).

Voting was on a weighted multiple choice basis – most questions The five stakeholder groups were:
offered delegates five or six options and delegates selected up to 1) Parties
three choices with their first choice scoring 3 points, their second end-users of dispute resolution, generally
choice 2 points and their third choice 1 point. As a result, the in-house counsel and executives
voting results were expressed as a percentage of the total number
of points available to a given answer.
2) Advisors
private practice lawyers and other
A response with a score of 100% equates to every voting delegate external consultants
choosing that option as their first choice. In reality, no response 3) Adjudicative Providers
achieved this score; the most important responses achieved judges, arbitrators and their supporting institutions
a score of 60% or more, with a variance of 10% between
responses marking a significant difference in opinion across
4) Non-Adjudicative Providers
stakeholder groups. mediators, conciliators and their
supporting institutions
Before voting, delegates were required to identify themselves as 5) Influencers
coming from one of five stakeholder groups so that their primary academics, government officers, policy makers
professional focus could be captured in the voting preferences.

06
Each conference was organised around four interactive sessions looking at both the demand and supply sides of the dispute
resolution market. The sessions provided the structure for the voting on the Core Questions and discussion of the results. They were:

• Access to Justice & Dispute Resolution Systems: What do Parties want, need and expect?
• How is the market currently addressing parties' wants, needs and expectations?
• How can dispute resolution be improved? Overcoming obstacles and challenges.
• Promoting better access to justice: What action items should be considered and by whom?

The delegates at conferences were self-selecting in that they ••Delegate registration questionnaires.
chose to participate in person or online. As a consequence, the
••Responses (via the App) on a series of open text questions in
data gathering was never intended to replicate the conditions for
each session, which were discussed by the panels and
the gathering of academic data. Nevertheless, the voting
delegates during the events.
population was truly global, covering all continents, common and
civil law systems, jurisdictions well known for highly developed ••Input into four Word Clouds which sought to capture the key

dispute resolution systems, and jurisdictions which are words reflecting delegates' views. (Selected Word Clouds are
developing ADR procedures to complement existing mechanisms. highlighted later in this report to give a sense of the differing
It provides a fascinating and unique global insight into dispute views and priorities around the world).
resolution today. ••Questions and comments collected in the App as each session
unfolded, which other delegates could “like”, thus ranking by
The voting took place at each conference live among the
popularity with other delegates.
delegates using the App 3. The questions were also opened up
to online voting after the last event in London in July 2017, Consequently, GPC collected a great deal of data on the thoughts,
until 31 August 2017. In addition to the voting on the Core wishes and perspectives of the delegates. The focus of this report
Questions, a wealth of additional data was collected at each is to review and interpret the key responses that emerge from the
event through: multiple choice Core Questions only. There remains a huge body
of material still awaiting analysis. It is available for further
investigation and research in discussion with IMI and the
Academic Committee. Please feel free to contact Jeremy Lack or
Barney Jordaan in the first instance to discuss.

3 For France, India, the Netherlands and Spain (Barcelona), there was was some variation in the voting procedure.

07
"The scale of the GPC is unique and valuable, and the insights In addition to the quantitative voting data, the qualitative
it offers merit further analysis and discussion. In terms of discussion data captured at the events is a further rich source
geographical reach and scale, there are no comparable waiting to be mined by academics and others in years to come.
academic or other studies in the field of dispute resolution. We have at this stage only scratched the surface of the research
potential of GPC. It has the ability to help shape the future of
Of course, while all care was taken to ensure the integrity of the dispute resolution at both local and international levels."
data gathering process and rigour in the formulation of the survey
questions and analysis of data, the project was not intended to be
primarily an academic project, nor does the data gathering process
represent a pure data collection environment. Any use of the GPC
data must therefore be undertaken with this in mind.

Nevertheless, the preliminary analysis of the Core Questions

provided by this report shows global trends that offer immediate Prof. Barney Jordaan
GPC Academic Committee Chair
insights and scope for further detailed local, regional and
Professor of Management Practice,
international analysis. The complete data set is available online on Vlerick Business School, Belgium
the GPC’s website, and all academics and researchers are welcome
to analyse, critique and comment on it.

08
Global Voting Data – Key Themes 
and Observations
The global voting data provides a wide range of insights into the topics raised in the
Core Questions. Herbert Smith Freehills, PwC and IMI and have analysed the data to
draw out some key themes, which can be split into two groups: Key Global Themes
emerging from the voting data; and observations on Regional Differences.

Key Global Themes

1 Efficiency is the key priority of Parties in choice of dispute resolution processes.

2 Parties expect greater collaboration from Advisors in dispute resolution.

3
Global interest in the use of pre-dispute protocols and mixed-mode dispute
resolution (combining adjudicative and non-adjudicative processes).

4 In-house counsel are the agents to facilitate organisational change.

External lawyers are the primary obstacles to change.

09
1. Efficiency is the key priority of Parties in choice of dispute resolution processes
Q1.2 When parties involved in commercial disputes are choosing the type(s) of dispute resolution process(es) to use, which of the following has the
most influence?4

Top 3 responses

65%
Efficiency
46%
Advice

32%
Predictability
Additional responses
24% Relationships
19% Confidentiality
13% Industry Practices
1% Other
Parties

••This represents a challenge to traditional adversarial dispute Providers (neutrals) may reflect that arbitration rules and
resolution models, whether public (domestic courts) or private mediation procedures are not ends in themselves but exist
(institutional and ad hoc arbitration). Parties are looking not just among a range of tools to assist parties in resolving disputes.
for justice and resolution of their disputes, but an efficient Flexibility, pragmatism and listening to Parties will likely
journey to resolution. translate to sustainable success. Providers can take more of a
role in helping Parties and Advisors to consider routes allowing
••Efficiency in the resolution of commercial disputes will not
greater efficiencies.
always be as simple as the quickest and cheapest route to
resolution (although cost and speed will always be important). Influencers can acknowledge that the resolution of commercial
Inherent to efficiency is the avoidance of waste, be that time, disputes is a commercial endeavour in which each stakeholder
money, effort or other factors – and avoiding waste seeks to prosper and exercise (where possible) choice about
requires thought and flexibility among the dispute forum and process to further the ends of Parties. A greater
resolution stakeholders. range of issues can also be considered in each case, beyond
the merits of the case, the time to outcome or the costs of
••Understanding what efficiency really means in terms of changing
the process.
the behaviour of stakeholders requires further discussion:
••Technology can drive efficiency. This is not limited to electronic
Parties may need to communicate their priorities, expectations
discovery and electronic filing in litigation. Dispute management
and underlying interests to Advisors and other stakeholders
tools and online dispute resolution (ODR) have the capacity to
more clearly.
change fundamentally the way disputes are resolved over the
Advisors can challenge themselves to focus relentlessly on next decade. We are already seeing how artificial intelligence (AI)
their clients' interests, being prepared to initiate or facilitate can automate the work of lawyers and adjudicators, paving the
non-traditional dispute resolution with combinations of way for decision-making robots.
adjudicative and non-adjudicative processes.

4 Based on the votes of Parties only.

10
 Q1.5
2.What
Parties expect
role do parties greater
involved collaboration
in commercial from
disputes typically want Advisors in dispute resolution
lawyers
(i.e. in-house or external counsel) to take in the dispute resolution process?
Q1.5 What role do parties involved in commercial disputes typically want lawyers (ie in-house or external lawyers) to take in the dispute
resolution process?

61%
Working collaboratively with parties to
67%
Speaking for parties
navigate the process. May request action and/or advocating on
on behalf of a party a party’s behalf

Parties Advisors
48% 61%
Advocate Collaborate

••One of the key discrepancies to emerge in the voting data was The Advisors who attended GPC events are, similarly, likely to
between how Parties said they wanted their lawyers to behave be a more sophisticated group in terms of ADR knowledge and
in dispute resolution processes and how those lawyers, the usage than their peers. But even taking this into account,
Advisors, saw their own role. why were the GPC Advisors’ votes so clearly out of step with the
GPC Parties’ votes? The answer may lie in the fact that most
••The key difference in the voting was that Parties indicated that
Advisors will have clients reflecting a spectrum of experience,
they wanted to see greater collaboration from their Advisors in
from the most sophisticated to relatively unsophisticated clients
dispute resolution processes, whereas Advisors consistently
who are only rarely involved in disputes and therefore rely
reported that they saw their role as advocates for their clients.
heavily on advice from their lawyers as to process choice,
••Are these positions inconsistent? Are lawyers out of step with their behaviour towards counterparties and strategy.
clients' needs? These are complex issues but some initial
Whether or not these differences reflect different experiences
perspectives on these data are:
between Parties and Advisors, there is a clear challenge to
The GPC Parties were a sophisticated group of delegates. the legal community to listen to clients and discuss whether
GPC Parties are more likely than the average disputant to collaboration is wanted and what that really means in a given
know what they want, and be more familiar with and skilled situation (particularly when disputes are acrimonious or thought
in the use of ADR processes – all of which informs the to be unmeritorious). This may be a genuine challenge to the
expectations and approach of their legal advisors. traditional notion of zealous advocacy where every point and
position is argued on behalf of the client.
Parties will need to speak up and reassure lawyers that they
wish them to try a different approach. A rigorous attention to
the law, of course, but also an approach to dispute resolution
that is flexible and open to using different processes. One that
acknowledges risks where they exist and is focused on efficient
outcomes, not unnecessarily expensive or drawn out journeys to
resolution. If Parties wish to promote efficiency in dispute
resolution they may need to encourage their lawyers to focus on
the core issues and discourage fighting points for their own sake.

11
"Greater emphasis on collaboration between in-house and amounts of data quickly and assess risk in more sophisticated
external lawyers, and between disputing parties, will lead the way ways. Conventional views on the role of confidentiality are being
for more efficient resolution of commercial disputes. Most dispute challenged. This should facilitate the earlier use of consensual
resolution still has as its frame of reference an adversarial process processes like mediation, in advance of, or in parallel with, or even
based on asserted legal rights. But this can be inconsistent with integrated into litigation or arbitration. The global data indicates a
the aspirations of the parties for quick, consensual resolution. mandate for change in attitudes and approach."

An early case assessment is a good example of how closer

collaboration can increase efficiency, with in-house counsel and
external lawyers working together to review the wider interests
and risks. The results can in turn help inform a more resolution-
focused approach with counterparties.

Alexander Oddy
Technology also has a role to play. Social tools and online platforms
GPC Executive Board Member
are making it easier than ever for lawyers to work more closely with Partner, Herbert Smith Freehills
each other and with their clients. Advancement in data analysis T +44 20 7466 2407
enables advisors and legal teams to review and investigate large E [email protected]

12
3. Global interest in the use of pre-dispute protocols and mixed-mode dispute
resolution (combining adjudicative and non-adjudicative processes)
Q3.2 To improve the future of commercial dispute resolution, which of the following processes and tools should be prioritised?

Top 3 responses

51%
Preventative 45% 43% Additional responses
pre-dispute or Combining Non-adjudicative 32% Reduction of
pre-escalation processes resolution
processes methods time and/or costs
18% Technology for
faster/cheaper
procedures
10% Adjudicative
resolution
methods
1% Other
*Adjudicative and non-adjudicative

••One of the striking areas of congruence across the GPC events processes in combination with adjudicative processes, whether
and all stakeholder groups was the interest in two closely this is at the encouragement of a court or arbitration body/
linked phenomena. First, the use of protocols to encourage the tribunal or by agreement of the parties. Such "mixed-modes"
use of non-adjudicative dispute resolution processes like of dispute resolution can be done sequentially, in parallel, or
mediation or conciliation before adjudicative processes such as integrated with one another.
litigation or arbitration. Second, the use of non-adjudicative

13
Q3.3 Which of the following areas would most improve commercial dispute resolution?

51%
Legislation
or conventions
inc. mediation Top 3 responses

Additional responses
29% Accreditation or
certification systems
36%
Cost
sanctions
47%
Protocols promoting
28% Quality control and
complaint mechanisms
non-adjuticative
processes 5% Third party funding rules
3% Other

••There seems to be near universal recognition that before ••There seems to be a clear consensus that combining processes,
parties embark on adjudicative processes – which are typically or mixed-mode dispute resolution, is the way forward. The
expensive undertakings of significant duration – they should challenge is to find ways to achieve this efficiently and quickly,
be at least encouraged (and potentially compelled) to explore recognising that there will inevitably be resistance to change in
less costly non-adjudicative options. This could be achieved many quarters. It is critical in this development that Parties are
through the development of pre-action protocols to be vocal in their demands and that Advisors, Providers of all types
followed before court proceedings can be commenced (save and Influencers are open-minded. Self-interest, familiarity and
where limitation or tolling periods are required or a particular the comfort zone need to give way to a relentless focus on
remedy like an injunction is needed), or through arbitration efficiency, supported by collaboration5.
clauses and rules encouraging parties to consider alternatives
before a tribunal is constituted.
••Adjudicative processes also need to provide occasions and
opportunities for the disputing parties to step away from the
heat of the battle and engage with each other
in a different manner (through mediation or another
non-adjudicative process). This can be achieved through judicial
case management or through changes to domestic rules of
civil procedure or to arbitration rules where referrals to
non-adjudicative processes exist on an opt-out basis.

5 IMI, the College of Commercial Arbitrators (CCA) and the Straus Institute for Dispute Resolution at Pepperdine School of Law have responded to this data by initiating a
tri-partite Mixed-Mode ADR taskforce, involving six different working groups. For more information about this taskforce or to join one of its working groups, see: http://
www.imimediation.org/about-imi/who-are-imi/mixed-mode-task-force/.

14
4. In-house counsel are recognised as the agents to facilitate organisational
change. External lawyers are the primary obstacles to change
Q3.4 Which stakeholders are likely to be the most resistant to change in commercial dispute resolution practice?

70%
External
Top 3 responses

lawyers

40%
Adjudicative 28%
Providers
Governments/ Additional responses
ministries of
justice 27% In-house lawyers
25% Parties
8% Non-adjudicative Providers
1% Other

••Recognising that the GPC data and experience throws down ••But why should that be the case? The Core Questions explored
a challenge to all stakeholder groups to listen and respond, whether Advisors might be making recommendations for
the voting data reveals some stark messages about the dispute resolution process choice based on the potential to earn
obstacles to and agents of change. (or not to earn) fees. But the voting data [Session 1, Q3 – see
over] suggested that this was not a major factor – or at least it
••All stakeholder groups identify Advisors (predominately private
was far less significant than factors like the type of outcome
practice lawyers) as the primary obstacle to change in
required or familiarity with a dispute resolution process.
commercial dispute resolution practice. The lawyers showed
the self-awareness to also identify themselves as the group
most resistant to change.

15
Q1.3 When lawyers (whether in-house or external) make recommendations to parties about procedural options for resolving commercial
disputes, which of the following has the most influence?

Top 3 responses
59%
Familiarity with
process

52%
Type of 40%
outcome Cost

Additional responses
25% Relationships
25% Industry Practice
2% Other

Lawyers

••Rather than rehearsing tired arguments about lawyers not ••This circles back to the discussion about the challenge to
promoting ADR for fear of its impact on their revenues, the data traditional notions of the zealous advocate, fighting her client's
suggests that the underlying issue is more closely linked to corner tenaciously. The 21st Century dispute resolution lawyer
something beyond training and education – familiarity. Have needs to deliver (or to work with others to deliver) what Parties
law schools and professional training regimes prepared today's want: dispute resolution process design, collaboration to
dispute resolution lawyers adequately for the role that Parties pursue efficient outcomes, as well as traditional tough
wish them to perform? Are Providers and Influencers creating representation when called for.
sufficient incentives for lawyers to gain real mediation or
conciliation experience post qualifying? More fundamentally,
what are the cultural expectations around what it is to be a
lawyer, advocating for a client?

16
Q3.5 Which stakeholders have the potential to be most influential in bringing about change in commercial dispute resolution practice?6

42%
In-house
Top 3 responses

lawyers

37%
Adjudicative
41%
Governments/
Providers ministries of
justice
Additional responses
33% External lawyers
27% Parties
20% Non-adjudicative Providers
1% Other

••Who can facilitate and drive change? Parties are clear that they ••Of course many parties to commercial disputes will not have
have a key role to play, identifying in-house lawyers as the the benefit of in-house legal resources, so they will need to rely
group with the potential to be most influential in bringing on a new generation of lawyers to assist them, trained in the
about change in commercial dispute resolution practice. The right skills as law school syllabuses evolve. With the lawyers of
stakeholder groups overall are less clear in identifying this generation Y, millennials and generation Z growing into
opportunity, yet when asked what innovations and trends are positions of influence within corporates and throughout the
going to have the most significant influence on the future of dispute resolution community, the concept of collaboration in a
commercial dispute resolution, they are quick to recognise way that would have been unthinkable to litigators of a
changes in corporate attitudes to conflict prevention. generation ago may already be an accessible reality to a
community grown up on crowd-funded solutions and sharing
••How might such changes be effected? An emphasis on the
through social media.
critical role of in-house counsel seems like a sound place to
start and research from long before the GPC provides insights ••For example, traditional notions of confidentiality that
into how organisations can change, and the critical role underpinned arbitration and ADR processes may have far less
in-house counsel have in driving that change7. significance for generations that have grown up professionally
and personally with a technology-driven information-sharing
culture. The willingness to engage in formal dispute resolution
processes over periods of years (particularly in jurisdictions
based on extensive discovery/disclosure) may be challenged
by decision-makers who are used to proceeding with business
and life at an ever faster pace.

6 Based on the votes of Parties only.

7 "The Inside Track – How blue chips are using ADR", Herbert Smith (legacy), 2007, available at http://hsfnotes.com/adr/key-adr-publications. 17
"The GPC Series was a fantastic opportunity for us to gather truly As in-house counsel rethink how they resolve disputes, there is
global perspectives on what changes need to be made to improve an opportunity to embrace the acceptance that collaboration
dispute resolution. One of conclusions is that while the need for brings results. That means drawing on the skills, experience and
change is recognised, most people think someone else has to make perspectives of different people to design optimal solutions. It also
the change happen. So who is going to make the change happen? means considering alternative resolution approaches rather than
the traditional adversarial one.
In my view, In-house counsel is best placed to facilitate this
change, as they own the problem. Disputes are generally not Our expectation is that a new generation of lawyers who have
an academic exercise but are about protecting corporate value. grown up in an information sharing culture will embrace such
In-house counsel has the right to demand change as custodian of an approach and that dispute resolution will become more cost
this value and they also have the ability to drive change as they effective, flexible, faster and fairer."
hold the purse strings. They represent a key link between the legal
world and the commercial one, balancing the need for effective
dispute resolution with the hard-earned experience of how best to
get results.

John Fisher
Partner and Global & UK Disputes Leader, PwC
T +44 (0)20 7212 6284
E [email protected]

18
Regional Differences
The cumulative global voting data on the Core Questions has already revealed
some surprising insights and perspectives. However, the great potential of the GPC
has always been to dig deeper into the data and seek to understand whether views
are genuinely homogeneous on a global basis or, as intuition might suggest, subject
to regional variations.
We identified some regional groupings to see if any trends emerged.
Our initial data analysis shows some fascinating differences which provides
the platform for more detailed investigations.

The regional groupings analysed were:

North
Asia UK Oceania
America

USA (Baltimore, Singapore, London7 Australia (Sydney)

Austin, Los Angeles, Hong Kong, and New Zealand
Miami, New York, Thailand (Bangkok) (Auckland)
San Francisco) and and India (Chandigarh)
Canada (Toronto)

Continental Africa/ Latin

Europe Middle East America

France (Paris), Nigeria (Lagos), Brazil (Sao Paulo),

Germany (Berlin), South Africa (Johannesburg), Guatemala (Guatemala City),
Italy (Florence), Netherlands UAE (Dubai) Mexico (Mexico City)
(Amsterdam), Poland (Warsaw),
Spain (Barcelona and Madrid)
and Switzerland (Geneva)

7 The UK sits in a unique position as a pro-ADR common law jurisdiction yet (currently) part of the EU and exposed to civil law influences.

19
1. Desire for increased regulation in Asia
Delegates were asked about the areas which would most improve commercial
dispute resolution. Globally, the two top choices (with virtually identically weighted
votes) were (i) the use of legislation or conventions that promote recognition
Q4.1
and enforcement of settlements, including those reached in mediation and (ii) the use
Who has the greatest responsibility for taking action to promote better access to
of protocols promoting
justice in commercial non-adjudicative processes before adjudicative processes.
dispute resolution?

Q3.3 Which of the following areas would most improve commercial dispute resolution?

Use of protocols promoting

non-adjudicative processes before
adjudicative processes
38% 55% 49% 59% 52% 36% 55%

Legislation or conventions that

promote recognition and enforcement
of settlements, including those 64% 37% 48% 42% 41% 51% 61%
reached in mediation

Asia Oceania Continental North UK Africa/ Latin

Europe America Middle East America

••However, when the voting data was segmented along regional processes, in Asia, than it does about issues of enforcement.
lines, some significant differences emerged. The votes in Asia While there have been significant initiatives to promote ADR
were massively concentrated in favour of legislation or usage in the region with Hong Kong's Practice Direction 31 of
conventions, scoring far higher than the use of protocols 2010, and major investments in Singapore to develop domestic
promoting non-adjudicative processes. Africa/Middle East and and international mediation bodies, there may be an
Latin America seemed to also prefer legislation to promote underlying question about whether non-adjudicative ADR like
enforcement, but less strikingly. The remaining regions show a mediation has yet become a sufficiently robust way of resolving
starkly different picture, with the use of protocols strongly disputes. That enforcement of mediated settlement
preferred to legislation (save in Continental Europe, agreements could help optically to evidence the status and
where the votes were about equal). value of mediation, is perhaps the key point.
••This triggers some interesting questions, not least because the
near universal experience in practice is that agreements
reached at mediation are only exceptionally not performed.
If that is the case, why would Asian delegates be in favour of
legislation and the need for enforcement of mediated
settlements? A possible answer is that the data reveals more
about attitudes to ADR, particularly non-adjudicative

8 ADR in Asia Pacific series (Herbert Smith Freehills 2015-2017) https://www.herbertsmithfreehills.com/latest-thinking/adr-in-asia-pacific-spotlight-series. These explore, through interviews and
market surveys, the developing trends in Hong Kong, Singapore and Indonesia.

20
2. Is efficiency the priority everywhere?
Delegates were asked which of a range of underlying demands will have the most
significant impact on future policy-making in commercial dispute resolution.

••On the cumulative global results, there was a clear winner – ••In reality, consensual processes like mediation and conciliation
the demand for increased efficiency of dispute resolution are commonplace in civil law Asian countries, and they are
processes including through technology. Yet when the results supported in Asia's key common law jurisdictions too.
were sorted regionally, a major difference of priorities The premium on enforceability may go more to the credibility
emerged. All regions except Asia chose efficiency as their top and robustness of the process. UNCITRAL's proposed convention
demand and by a significant margin. This included the common on the enforceability of mediated settlement agreements will,
law regions (UK, North America, Oceania) and the civil law it seems, be welcomed in Asia. Systems that recognise
region of Continental Europe. outcomes internationally reassure parties embroiled in
cross-border disputes that the outcome will be simple to
••In Asia, the leading choice was again the demand for certainty
enforce. This is being put in ever sharper focus as China's Belt
and enforceability of outcomes. Is this a reflection of the
and Road Initiative gathers pace, where one proposal on the
regional desire for legislation and a convention on enforcement
table is for disputes arising under the initiative to be mediated
of settlements, identified above? Or is the demand for
first, before proceeding to arbitration.
legislation and a convention a reflection of a deeper regional
(and perhaps cultural) preference for a dispute resolution
process that gives a clear answer? Do negotiation-based
processes like mediation pose particular challenges in Asia
where decision-making hierarchies and the desire not to lose
'face' make it culturally and practically more difficult to engage
Q4.4
with the flexibility of mediation?
Which of the following will have the most significant impact on future policy-making
commercial
Q4.4inWhich dispute resolution?
of the following will have the most significant impact on future policy-making in commercial dispute resolution?

Demand for increased efficiency of

dispute resolution processes
including through technology
61% 78% 62% 71% 80% 69% 64%

Demand for certainty

and enforceability
of outcomes
65% 41% 55% 43% 50% 48% 56%

Asia Oceania Continental North UK Africa/ Latin

Europe America Middle East America

21
3. Awareness and Attitudes in Continental Europe
A regional analysis of a series of related questions indicate an interesting potential
divergence in attitudes to conflict resolution in Continental Europe as compared with
other regions.
••Delegates in Continental Europe identified that the In all other regions, save for Latin America which is also a civil law
stakeholders
Q2.4
primarily responsible for ensuring parties region, delegates identified external lawyers as equally or more
involved in commercial disputes understand their dispute responsible for this critical role.
Who is primarily responsible for ensuring parties involved in commercial disputes understand their
resolution process options are in-house lawyers.
process options, and the possible consequences of each process before deciding which one to use?
Q2.4 Who is primarily responsible for ensuring parties involved in commercial disputes understand their process options, and the possible
consequences of each process before deciding which one to use?

In-house Lawyers
54% 48% 65% 60% 69% 53% 60%

External Lawyers
56% 68% 60% 70% 69% 59% 58%

Asia Oceania Continental North UK Africa/ Latin

Europe America Middle East America

••Building on this, when in Session 3, Q1 delegates were asked delegates in all other regions were clear that financial or time
about the main challenges or obstacles parties face when constraints were the main obstacles. This may reflect the fact
seeking to resolve commercial disputes, the delegates in that adjudicative dispute resolution in the public courts of civil
Q3.1
Continental Europe and Latin America again stood out. law jurisdictions is relatively less expensive than in many other
What
They are the main
identified obstacles
insufficient or challenges
knowledge of options face when
partiesavailable to seekingjurisdictions
to resolve commercial
(certainlydisputes?
common law jurisdictions).
resolve disputes as the most significant challenge, where
Q3.1 What are the main obstacles or challenges parties face when seeking to resolve commercial disputes?

Insufficient knowledge of options

available to resolve disputes 50% 51% 57% 45% 35% 55% 64%

Financial or
time constraints 66% 63% 56% 66% 73% 68% 49%

Asia Oceania Continental North UK Africa/ Latin

Middle East America
Europe America

22
••When the delegate responses to Session 4, Q5 are analysed, required. In Continental Europe, however, by far the most
(what innovation/trends are going to have the most significant significant innovation is identified as changes in corporate
influence on the future of commercial dispute resolution?) the attitudes to conflict prevention. The fact that Latin America
Q4.5
Continental European delegates again stand out. In all regions voted differently to Continental Europe suggests that this is not
Whatthan
other innovations/trends
Continental Europeare the
going to have is
message mosta greater
theclear: significant influence
a civilonlaw futurecommon law issue.
theversus
of commercial dispute resolution?
emphasis on collaboration rather than adversarial processes is

Q4.5 What innovations/trends are going to have the most significant influence on the future of commercial dispute resolution?

Greater emphasis on collaborative

instead of adversarial processes for
resolving disputes 59% 64% 52% 62% 60% 62% 64%

63% 56%
Changes in
corporate attitudes to conflict
prevention
42% 42% 43% 49% 56%

Asia Oceania Continental North UK Africa/ Latin

Middle East America
Europe America

••Pulling these points together, a picture emerges of Continental cheap (but often slow) litigation in the public courts of civil law
Europe marching to a different beat to other regions. It seems jurisdictions in Continental Europe may have driven delegates
to be looking for in-house lawyers to drive change in corporate away from voting for efficiency and collaboration. It may also
attitudes to conflict prevention. Yet these lawyers are be a reflection on the different weight given to legal
simultaneously battling with a lack of knowledge of dispute departments in some civil law jurisdictions, where greater
resolution process options to effect that change. All the while emphasis is placed on the difference between jurists
the global drive for more collaboration seems to be at its and external lawyers.
weakest in Continental Europe. The experience of relatively

23
Perspectives in the UK – the legacy of the Woolf Reforms?
A series of questions showed that the delegates at the GPC series finale in London
in July 2017 held some significantly progressive views. It may be that as the 20th
anniversary of Lord Woolf's sweeping reforms to the English civil justice system
arrives, the effects of a generation of Parties brought up with ADR embedded in the
fabric of commercial dispute resolution are in evidence.
••When lawyers recommend dispute resolution procedural unlike all other regions which reported familiarity with a
options to parties [Session 1, Q3], London delegates found the particular type of process as the most influential factor.
type of outcome requested by the party most influential,

Q1.3 When lawyers (whether in-house or external) make recommendations to parties about procedural options for resolving commercial
disputes, which of the following has the most influence?

The type of outcome requested

by the party 55% 55% 52% 53% 61% 53% 53%

Familiarity with a particular type

of dispute resolution process
60% 61% 58% 64% 58% 55% 54%

Asia Oceania Continental North UK Africa/ Latin

Europe America Middle East America

••Delegates in London were by far the clearest in identifying that equivalent significance, except for North America where the
the parties to commercial disputes typically want lawyers to tradition of zealous advocacy on behalf of clients was readily
work collaboratively with parties to navigate the dispute apparent in the preference for lawyers advocating on behalf
resolution process [Session 1, Q5]. In other regions delegates of clients.
viewed the role of lawyers as advocates as being of broadly

24
 Q1.5
What role do parties involved in commercial disputes typically want lawyers
(i.e. in-house or external counsel) to take in the dispute resolution process?
Q1.5 What role do parties involved in commercial disputes typically want lawyers (i.e., in-house or external lawyers) to take in the dispute
resolution process?

Speaking for parties and/or

advocating on a party's behalf
60% 64% 55% 72% 60% 57% 49%

Working collaboratively with parties to

navigate the process. May request
actions on behalf of a party
62% 67% 61% 63% 78% 64% 58%

Asia Oceania Continental North UK Africa/ Latin

Europe America Middle East America

••When delegates were asked about the main obstacles or

challenges parties face when seeking to resolve commercial
disputes, insufficient knowledge of the options available was
far lower in the UK than in other regions
Q3.1
What are the main obstacles or challenges parties face when seeking to resolve commercial disputes?

Q3.1 What are the main obstacles or challenges parties face when seeking to resolve commercial disputes?

Insufficient knowledge of options

available to resolve disputes 50% 51% 57% 45% 35% 55% 64%

Asia Oceania Continental North UK Africa/ Latin

Europe America Middle East America

••While the Woolf Reforms have been widely celebrated as an

enlightened step forward in the administration of civil justice,
it seems the GPC data may be providing some real evidence of
how changes in civil procedure to promote ADR can bring about
progressive attitudes among a generation of Parties.

25
Word Clouds from around the Globe
An analysis of the word clouds generated at selected GPC events gives a sense of the different priorities and moods of the delegates.

Session 1: What words would you use to describe a sophisticated commercial party?

LONDON
STRATEGIC
EXPERIENCED PARIS CHANDIGARH
NEW YORK EFFICIENCY UNDERSTANDING PREPARED
STRATEGIC DEMANDING FLEXIBLE TIME
EXPERIENCED EXPERIENCED COST
REALISTIC EFFICIENT COLLABORATIVE
INFORMED
SAN FRANCISCO HONG KONG
MADRID EFFICIENT
STRATEGIC
PREPARED KNOWLEDGE LAGOS DEMANDING
KNOWLEDGEABLE EFFICIENT EXPERIENCED
KNOWLEDGEABLE COMMERCIAL
DEMANDING EXPERTISE
EXPERIENCED
JUDGMENT
ADVANTAGED
COMPLEX
SINGAPORE
SAO PAULO OUTCOME
COLLABORATIVE CONTROL
NEGOTIATOR FLEXIBLE
JOHANNESBURG PROCESS SYDNEY
FLEXIBLE
EFFICIENT INFORMED PREPARED
EXPERIENCED EFFICIENT
EFFICIENT PRAGMATIC
DECISIVE EXPERIENCED

Session 2: What words would you use to describe what can be done to exceed parties' expectations?

LONDON
EFFICIENCY
SPEED PARIS
CHANDIGARH
NEW YORK LISTENING EFFICIENCY MEDIATION
EFFICIENCY FLEXIBILITY CREATIVITY
RESOLUTION
COMMUNICATION RECOGNITION
DISPUTE
CONTROL TRAINING
COST
FAIR
SAN FRANCISCO HONG KONG
MADRID EFFICIENCY
FLEXIBILITY
CREATIVITY PROFESSIONALISM LAGOS COMMUNICATION
LISTENING EFFICIENCY SPEED
EFFICIENCY FLEXIBILITY
EFFICIENCY QUALITY
CERTAINTY
SPEED
CLARITY
SPEED SINGAPORE
EFFICIENCY
SAO PAULO UNDERSTANDING
KNOWLEDGE PATIENCE
RESULT PROCESS
JOHANNESBURG SYDNEY
EFFICIENT
QUALITY EFFICIENCY COMMUNICATION
PROCESS LISTENING
COLLABORATION EFFICIENCY
SPEED RESPONSIVENESS
26
Session 3: What words would you use to describethe most common impediments that keep parties from resolving their disputes?

LONDON
LAWYERS
EGO PARIS
CHANDIGARH
NEW YORK EMOTION IGNORANCE EGO
MONEY IGNORANCE ABSENCE
IGNORANCE
PRIDE MONEY
DELAY
MISINFORMATION KNOWLEDGE
TIME
LAWYERS
SAN FRANCISCO HONG KONG
MADRID MONEY
EGO
EMOTIONS CONFIDENCE LAGOS STUBBORNNESS
IGNORANCE IGNORANCE COSTS
EGO INTRANSIGENCE
MONEY FEAR
PRIDE
CULTURE
LAWYERS
COST
SINGAPORE
SAO PAULO EGO
UNFAMILIARITY PRIDE
CULTURE EMOTIONS
JOHANNESBURG MINDSET SYDNEY
MISTRUST
KNOWLEDGE IGNORANCE UNREASONABLE
EGO ADVERSARIAL
MINDSET UNREALISTIC
COSTS REPUTATION

Session 4: What words would you use to describethe changes to focus on in the future?

LONDON
TECHNOLOGY
EDUCATION PARIS
CHANDIGARH
NEW YORK FLEXIBILITY COLLABORATION MEDIATION
EDUCATION EFFICIENCY TRAINING AWARENESS
TECHNOLOGY TRANSPARENCY EDUCATION
COLLABORATION MEDIATION LEGISLATION
ACCOUNTABILITY
SAN FRANCISCO HONG KONG
MADRID EDUCATION
EFFICIENCY
FLEXIBILITY EFFECTIVENESS LAGOS TECHNOLOGY
EDUCATION LEGISLATION EFFICIENCY
LEGISLATION INNOVATION
ACCESS OBLIGATION
EDUCATION
PUBLICITY
AWARENESS
TECHNOLOGY
SINGAPORE
SAO PAULO EDUCATION
EDUCATION TECHNOLOGY
CULTURE MINDSET
JOHANNESBURG LEGISLATION SYDNEY
KNOWLEDGE
INFORMATION EDUCATION TECHNOLOGY
EFFICIENCY EDUCATION
LEGISLATION DETERMINATION
TRAINING ACCREDITATION

27
Appendix 1

Members of the GPC Academic Committee

Prof. Barney Jordaan (Belgium) Ms. Emma-May Litchfield (Australia)

Dr. Amel Abdallah (Oman) Prof. Amel Kamel (Oman)

Dr. Dalma R. Demeter (Australia) Prof. Lela Love (USA)

Prof. Ann-Sophie De Pauw (Belgium & France) Prof. Ian MacDuff (New Zealand)

Dr. Remy Gerbay (UK & USA) Prof. Peter Phillips (USA)

Dr. Geneviève Helleringer (France & UK) Prof. Alan Rycroft (South Africa)

Ms. Danielle Hutchinson (Australia) Prof. Donna Shestowsky (USA)

Prof. Joel Lee/Lee Tye Beng (Singapore) Prof. Alain Laurent Verbeke (Belgium)

28
Contacts

Alexander Oddy Jeremy Lack

GPC Executive Board Member GPC Series Co-ordinator
Partner, Herbert Smith Freehills Attorney-at-Law & ADR Neutral
T +44 20 7466 2407 T +41 79 247 1519
E [email protected] E [email protected]

John Fisher Michael McIlwrath

Partner and Global & UK Disputes Leader, PwC GPC Series Chair
T +44 20 7212 6284 Global Chief Litigation Counsel, Litigation, GE Oil & Gas
E [email protected] Director of IMI
T +39 34 8287 3019
E [email protected]

Deborah Masucci Anita Phillips

GPC Advisory Board GPC Advisory Board
IMI Chair Professional Support Consultant
T +1 646 670 7224 Herbert Smith Freehills
E [email protected] T +852 2101 4184
E [email protected]

29
Notes

30
31
32
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