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Alternative Dispute Resolution

May 1, 2024

It is time to flip the script on how we resolve disputes

See more on It is time to flip the script on how we resolve disputes

By Lisa B. Morgan

Lisa B. Morgan

Mediator in Los Angeles and Paris,

In March I organized and moderated a panel discussion for Paris Arbitration Week (PAW). The topic was, "The holistic approach to dispute resolution: How the combination of mediation and international arbitration can be used to meet your client's dispute resolution goals." Before getting to the topic, let me explain PAW.

Paris has long been viewed as a favorable "seat" for international arbitration. Home to the ICC and where institutions have taught international arbitration for over sixty years, Paris has historically possessed an "avant-guardist" mindset regarding international arbitration. To this end, eight years ago a handful of Parisian arbitration practitioners created PAW, a week of panel discussions and social events wherein international arbitration practitioners exchange ideas and information. PAW is attended by practitioners worldwide. It has been so successful that it has been emulated throughout the world, including California. Mediation is not generally discussed. It was time to change that. This year, we did.

As a full-time practicing mediator with a background in litigation and an LL.M. in international arbitration from Paris-Panthéon-Assas-Université, I naturally see the attributes in each discipline and how they may not only intersect but work together. I reached out to my former professors, directors of LL.M. AWArDS and Master Droit Comparé des Affaires programs, about sponsoring a PAW panel discussion. They responded favorably. The event was hosted these programs, Panthéon-Assas, the Institut de Droit Comparé de Paris, and the double-diplôme Assas-King's College London.

During the event, and before introducing the panel of international mediation and arbitration specialists, I suggested that it was time to flip the script on how we resolve disputes; it is time to view international arbitration and mediation as cooperative, not competitive, routes to dispute resolution. The holistic approach focuses on the ultimate goal: the most effective and efficient resolution of your client's dispute. Beyond an analysis of the assertion and/or preservation of legal claims, it includes examining the clients' objectives, alternatives, and other factors including reputation, relationships (present and future), any power imbalance or leverage considerations, the urgency, the source of the conflict (systemic or unique), and the costs and expenditure of resources - including time, finances, and health.

The panel was lively and informative. After discussing the unique attributes of mediation, we talked about drafting and the enforcement of dispute resolution clauses with mediation obligations, the timing and flexibility of the mediation process, the finality of mediation, and enforcement considerations including an examination of the Singapore Convention and the New York Convention. Lastly, we addressed how to teach a holistic approach. The subject was well-received, and I anticipate that this was only the first of many discussions concerning the "holistic approach." In fact, in a 2021 survey by Queen Mary University of London, international arbitration was identified as the preferred method of resolving cross-border disputes for 90% of respondents, 59% of whom prefer international arbitration to be used in conjunction with ADR.

International arbitration does not (yet) have the prominence in California that it does in Paris. However, both jurisdictions have overly-burdened courts and adjudicatory processes which take far too long and cost the public and private sectors far too much money. Mediation must necessarily be regarded as part of the solution and both jurisdictions stand to gain significantly by embracing a holistic approach.

I am not of the persuasion that all matters should be mediated. If it is a matter of setting precedent, legal interpretation, or a client needs a public forum, then litigation may be necessary. In other circumstances, if the parties do not have the information necessary to analyze their risks, if there is a power imbalance, a shift in leverage is needed, or the distrust is high with no possibility of creating a solution-oriented mindset necessary to engage in effective discussions, then an adjudicatory process (litigation or arbitration) may be the best place to begin and when to begin mediation is case-dependent. Mediation is flexible in both procedure and resolution; there is no "one-size-fits-all." The adjudicatory process may be stayed, or mediation can take place in a specified window of time without pausing the adjudicatory proceeding. It is the parties who set the mediation agenda; the entire case may be mediated or just one issue. Mediation may be conducted entirely in joint session, strictly using shuttle diplomacy or a combination of both. Mediation can utilize mixed mode processes: including, document exchange, witness examination, expert consultation, or the mediator can take on a conciliatory or arbitral role provided there is informed consent and waiver of any due process challenges. Mediation offers finality; there is no appeal or set aside. Moreover, enforcement of a mediated settlement is generally not necessary. Matters resolved in an international mediated commercial settlement may be enforced under the Singapore Convention if applicable, or (in international arbitration) converted into a consent award for possible enforcement under the New York Convention.

I've heard it said that lawyers practicing in one discipline of dispute resolution will not embrace the use of another for fear of losing revenue. While that argument assumes a non-client-centered focus, this fear is a fallacy; there will never be a shortage of disputes. Life will always be filled with conflict because it is a natural part of our existence. The world is comprised of (perfectly) imperfect humans with behavioral and communication shortcomings; who perceive and experience even the same situation differently; who are often driven by emotion; and even with the best intentions and through no contribution of their own, who may be faced with situations beyond their control. There can be no elimination of conflict, the issue is how we handle the conflicts we encounter.

Resolving disputes, amicably, as soon as possible, is best. While we should strive for the best-case scenario realistically it will not fit all circumstances. We must do the best we can with the situation presented; the holistic approach to dispute resolution will allow us to do just that.

Lisa B. Morgan is a mediator in Los Angeles and Paris.

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