19 June 2017

GPC Sydney - a participant's view

Thought leadership offering insights and lessons about dispute resolution

Written by Resolution Institute member, mediator Steve Lancken, Local Organising Committee member and panel moderator at the Global Pound Conference in Sydney

Rarely was the word “Alternative” used when 120 thought leaders came together at Herbert Smith Freehills on 29 May 2017 for the Australian iteration of the Global Pound Conference  The conference attendance included “users” (or clients) of DR services, lawyers, mediators, arbitrators and influencers such as academics and politicians.  DR services such as mediation, conciliation and arbitration were undoubtedly the focus of discussion in the formal sessions, and during the informal networking breaks.

Resolution Institute was the Australian and New Zealand organising supporter, and with Local Organising Committees and the Australian arm of international sponsors Herbert Smith Freehills brought together some of the leading minds in Australian business to answer questions and discuss the future of DR and access to justice in the commercial world.  The meeting voted on 20 Core Questions accessible on the GPC website - the same questions that have or will be “voted on” in 40 places around the world in 2016 and 2017. 

And the room was alight with ideas and deeply immersed in serious discussion.

How about the thoughts of the senior executives responsible for DR at BHP, Telstra, NAB, the ATO; the leadership shown by one of Australia’s most respected insolvency practitioners and the ideas of AIG the world’s largest insurer.  Add to that the ideas of the Australian Government’s senior litigator, partners from Australia’s biggest law firms and the innovation of respected and highly regarded DR providers.  Not to mention the ideas of the NSW Small Business Commissioner and Indigenous representatives.  When you have all that in the one room you have a recipe not just for an interesting and highly informed discussion about commercial DR but a game changing approach to an age old “problem”.

What I learned was sometimes counterintuitive, sometimes surprising but always based on the thoughts of the informed and the involved.  Here were the ideas of the real world, not the theory and hope of the evangelical.  Those in the room work where the rubber hits the bitumen and they were open and honest, given the Chatham House rules that applied.  While I cannot say what any person said, the themes were remarkably consistent with those expressed so far by the rest of the world.

Here are some of the lessons and understandings from the conference:

  1. Mediators and DR practitioners, are not on the fringe.  DR processes are positioned at the front and centre of disputing in all areas of business.  DR practitioners need no longer engage in the debate about whether mediation (for instance) is better or faster or cheaper than litigation.  The law and DR co-exist as part of the continuum of services that uses need when addressing conflict and dispute.
  2. Even though DR is part of the mainstream there is still a significant difference of opinion, and a good degree of misunderstanding, of what DR practitioners are capable of achieving.  Herein is the first BIG OPPORTUNITY.  Imagine if everyone in business understood how mediation and other DR works. Imagine if the great advantages of collaboration and good decision making were understood. Imagine if commerce valued the assistance that DR professional can offer in facilitating the best possible conversations.  Imagine when people understand that having a “great conversation” is good for business and value the relationship benefits of well-practiced mediation and conciliation (for instance).  Perhaps then mediators will be the trusted advisors of business.  After all, we were told by business leaders that “most” business disputes are resolved not by legal means but by conversations and negotiation and that is the bread and butter of the mediator.  Time and again the conference heard of the need for more and better education and understanding of the truth of mediation and other DR processes.
  3. Business wants and needs advice to apply the best processes at the right time.  I heard time and again that an early appraisal that recommends the best process at that time would be valuable.  The conflict triage service is what business wants and needs as it struggles to avoid the cost of litigation, while at the same time recognise that “some cases need to be fought”.  Who is better to advise business about DR options - is it not a DR professional with a vast repertoire of skills, and ideas?  Here is BIG OPPORTUNITY number 2.
  4. No longer do lawyers suggest that DR or its practitioners deliver “second class justice”.  The Conference was very much focussed on “access to justice” and no one said that facilitative or determinative practitioners do not offer “access to justice” even as they assist their clients to decide that some disputes do not require judicial oversight or decision making.  BIG OPPORTUNITY number 3 is to ensure that governments and policy making bodies develop a more sophisticated understanding of “access to justice” and find ways to support access to justice through means other than the Courts.
  5. Business is desperately looking for innovative ideas.  I got the feeling that with disruption all around, business wants and needs a truly disruptive approach to DR.  One conference sponsor, MODRON, is looking to do just that with an innovative IT platform to manage disputes.  My bet (and here is BIG OPPORTUNITY number 4) is that MODRON receive many calls from the big end of town to seek a disruptive response to an old problem - how to effectively deal with conflict.
  6. Process of itself is not valued.  Skills are!  Read Bernie Mayer and you will understand.  I don’t need to explain the opportunity here. Bernie does it much better.


And now the challenge.  As DR practitioners, we have more to do to position ourselves as leaders in the provision of business services.  I wonder why a highly credentialed mediator is any less valuable to business than a warrior “senior barrister” or former warrior “retired judge”? 

In the challenge is BIG OPPORTUNITY number 5 and the most important task of the next five years for our profession: to sell our collective and individual skills and create heroes who are the equivalent of QCs and judges.  

Mediators are not the poor second cousins of senior lawyers or retired judges.  Being a senior lawyer or retired judge does not in itself make you a great mediator any more than being a great mediator will qualify you to navigate the labyrinth and treacherous legal system of litigation.  And here is BIG OPPORTUNITY number 6.   What if we could disrupt in a way that demonstrated the greatness of our colleagues and celebrated their success, not as warriors but as peacemakers and deal makers, now that we have a “profession”.

The GPC was an outstanding success.  If only Herbert Smith Freehills offices could have accommodated more people who want or would value from understanding, more people who can learn and more people who seek to understand what mediators and DR practitioners can do to unleash the potential to create a more peaceful and more just wold.  Access to justice is not as exciting as the latest Netflix “lawyer soap”.  While Harvey Specter is great on TV, in the real world few want the level of aggression or conflict that Harvey epitomises.

The Resolution Institute should be proud, not just for facilitating the Australian version of the Global Pound Conference, but for creating a space for a real, honest and diverse conversation.  Let’s hope that we do not need to wait another 110 years to explore the “Causes for the Popular Dissatisfaction with the Administration of Justice” again.  Roscoe Pound has echoed for too long without change.  The time is right for disruption!