Consultation Paper on Alternative Dispute Resolution - Law Reform ...

disputes that arise. These include, but are not limited to, ADR clauses
partnering, joint problem solving, mediation, conciliation, early neutral
evaluation, online dispute resolution, and arbitration.
7.07 In a study conducted by the English firm of solicitors Herbert Smith
LLP in 2007, 21 general counsel and in-house disputes lawyers were
interviewed about their dispute management systems in organisations across a
range of industry sectors, including the Royal Bank of Scotland, Merrill Lynch,
and GE. 9 Mediation was overwhelmingly the most frequently used ADR
process. 55%of the organisations had used mediation at least 4-8 times in the
previous 12 months and some organisations reported far higher numbers than
that. 10
7.08 In the United States, approximately 800 companies, including Time
Warner, UPS, General Electric, and Coca-Cola have pledged to explore ADR
before litigation whenever a dispute arises with a company that has made a
similar pledge. 11 It is evident from this that commercial mediation is a
phenomenon of global significance, and is rapidly becoming an attribute of
global commerce. 12
7.09 Commercial disputes often centre on very sensitive commercial
details which parties would prefer not to have disclosed in public. The
confidentiality afforded by mediation is therefore highly attractive. When
commercial disputes arise, the most favourable outcome for those involved is to
have the dispute resolved quickly and to maintain a working business
relationship with the other party.
―…Mediation is about mending fences and finding a constructive
approach to conflict resolution that brings to the surface issues of
mutual concern; reviews the various angles of the issue at stake;
and, allows the conflict to be used as a learning tool and as a basis
9 ―The Inside Track – How Blue-Chips are using ADR‖ Survey & Report conducted
10 Ibid.
by Herbert Smith LLP November 2007. Available at www.herbertsmith.com.
11 Runesson and Guy Mediating Corporate Governance Conflicts and Disputes (The
International Finance Corporation, World Bank Group, 2007) at 13. Available at
www.ifc.org.
12 Response of the International Institute for Conflict Prevention and Resolution
(―CPR Institute‖) to questions posed by Arlene McCarthy MEP concerning what
became the Directive of the European Parliament and of the Council on Certain
Aspects of Mediation in Civil and Commercial Matters at 3 (November 2005).
Available at http://www.europarl.europa.eu/comparl/juri/consultations/cpr_en.pdf.
233