Civil justice: A holistic approach to dispute resolution

At London International Disputes Week (LIDW) last June, the lady chief justice called ‘for the three main forms of dispute resolution – mediation, arbitration and litigation – to come together and consider how they can best complement each other and learn from each other’. She returned to this theme in her recent President’s Circle Lecture at the British Institute of International and Comparative Law suggesting, among other things, ‘the establishment of a London Dispute Resolution Committee to make recommendations on how best we can provide a holistic approach to international mediation, arbitration and litigation. Such an approach would mirror the considered approach taken in Singapore’. 

As a mediator and co-chair of LIDW, I was interested to see Baroness Carr return to this theme, most of all because it gives further credence to the aims and ambitions of LIDW. The founders of LIDW made a very important decision when they named the event an International Disputes Week rather than, as many other jurisdictions have done, an arbitration week. This inclusive name ensures that all forms of dispute resolution are represented and that London has a pronounced and sophisticated dispute resolution ecosystem.

I became involved in LIDW because I believed mediation needed to be both represented and perceived as an equal partner in the dispute resolution toolkit, alongside litigation and arbitration. This year my fellow co-chairs, Professor Loukas Mistelis and Jonathan Cary, represent arbitration and litigation respectively. We can confidently assure the LCJ that a joined-up approach is already under way and market-driven. Over five days in June, the global disputes community –mediators, arbitrators, litigators, experts, organisations, institutions and academics – will gather in London to network, discuss and learn from one another.

The LCJ’s welcome call for a Dispute Resolution Committee proposes to build on the efforts of LIDW. It should, Carr suggested, draw experience from a broad range of practitioners (after all, you don’t have to be a lawyer to be a mediator) and, crucially, bring the user experience into the debate. Ultimately, our focus should be on client-centred dispute resolution.  

The Singapore precedent cited by Baroness Carr would not have been possible without the encouragement and financial support of the Singapore government. If London is to follow suit, similar support may be necessary. From a mediator’s perspective, the development of an international mediation centre in London would be most welcome. Our closest equivalent is probably the International Dispute Resolution Centre. This provides a great venue and one in which arbitrators, litigators and mediators are often found lunching together in the canteen but, in terms of leadership for mediation, that sits with the Civil Mediation Council (CMC) and, for family disputes, the Family Mediation Council.  

The CMC is already in conversation with the Ministry of Justice policy team and the judiciary about the implications of Churchill and the further introduction of mediation into the civil justice system. Recently, further changes to the Civil Procedure Rules were announced relating to the court’s powers to order or encourage parties to engage in alternative dispute resolution under parts 58 and 59 of the CPR, which concern the Commercial Court and the Circuit Commercial Courts respectively. These had already been added to the overriding objective and to parts 28 and 29 of the CPR, which concern fast track, intermediate track and multi-track cases.

Litigators – whether they welcome it or not – are increasingly recognising the benefits of mediation and are already being strongly encouraged by these changes to use mediation as a tool in their dispute resolution toolbox. And, as the LCJ pointed out, the court system and litigation form a complementary legal framework within which mediation can take place.

But what of arbitration, particularly international arbitration, which Carr also addressed? She specifically suggested that the promotion of international mediation ought also to produce benefits for international arbitration. Clearly, the settlement of disputes brings benefits for the disputing parties and may ameliorate the cost and delay that is now being associated with the process. Anecdotal evidence suggests that some parties may now opt for arbitration over litigation given the increasing focus on mediation from the courts and, therefore, a better chance of settling the dispute.

Many in the arbitration community see the benefit of mediation and are aware and supportive of multi-tier dispute resolution clauses. Most arbitral institutions also have mediation rules. However, in the judicial system, it has taken the introduction of rules, cost sanctions and now mandatory court orders to bring parties (and their counsel) to the mediation table in any meaningful way. In my view, until the arbitral institutions take the lead in encouraging parties to consider settling their disputes, the growth of mediation in arbitration will be slow.   

It may be that the wider global arbitral community needs to be brought into the conversation. The cynic’s view may be that, if London’s arbitral institutions make credible efforts to help parties settle disputes by increased use of mediation or other methods, they will face the risk that those advising parties (and the arbitrators) decide to choose arbitral seats away from London. I hope that is not the case, but we always have to be aware of unintended consequences.  

These are the sorts of questions and debates that might be had as part of a Dispute Resolution Committee. My fellow co-chairs and I look forward to the opportunity to debate, discuss and work towards a more coherent dispute resolution ecosystem.

Henrietta Jackson-Stops is a mediator at IPOS Mediation, London