Is there a need for more regulation in ADR/mediation?
At the Opening of the Legal Year Seminar in Inner Temple on Monday 30 September 2013, Toby Landau QC gave an excellent outline of the problems of trying to create a harmonized standard in arbitration. The proliferation of codification is more like “legislitus”, a disease, the problem being that the more that is written the more there is to argue about, confuse and bog down a case. If seeking an international standard, the dangers of what can be created by consensus is likely to be asking everyone to eat a MacDonalds when what ADR (and mediation in particular) actually needs is the ability to take the parties to eat any sort of meal at any type of restaurant to suit their interests and needs. Local customs, cultural differences, type of dispute matter, industry standards, the way people do and approach things etc all mean flexibility and adaptation to what the parties need matters far more than any regulation.
Is a rise in arbitration and mediation always a good thing?
The other question addressed by a panel of speakers had one consensus, that “always”, always has an exemption. Obviously if disputes can be resolved quickly, efficiently and with lasting outcomes it has to be beneficial. Cyrus Benson QC gave an example of arbitration clauses in American Express adhesion contracts forcing the smaller party to waive joinder, class actions or any association that could club together to afford to arbitrate so that as such the arbitration clause is used to “mug” parties and inhibit dispute resolution.
With regard to mediation, what is now happening all over the country is people confidentially and efficiently stepping up to go through the process of mediation, learning to handle their disputes and choosing for themselves how best to solve them. Trusting people to be able to make the right choices for themselves with the benefit of open dialogue, useful legal advice from their lawyer, and a skilled mediator to facilitate, guide, manipulate etc to sort it out, has to be always a good thing. When mediation does not work, it’s usually because the parties cannot trust themselves. Even when it does not settle, the experience of endeavouring to understand themselves and the other party in a dispute and trying to work out how to cope better with their dispute still has to be a good thing. It does not matter if a party is an international multi-millionaire company, a manager struggling to improve contractual relations or anyone because ultimately we are all human beings whose buttons get pressed in the strangest of ways by the weirdest of situations who sometimes need someone else to help.