Access To Justice—The Road Ahead: What Is The Role Of The Lawyer/Advisor And Education?
FORDHAM INTERNATIONAL LAW JOURNAL
Fordham International Law Journal
Copyright c 2017 by the authors. Fordham International Law Journal is produced by The
Berkeley Electronic Press (bepress). http://ir.lawnet.fordham.edu/ilj
ACCESS TO JUSTICE—THE ROAD AHEAD:
WHAT IS THE ROLE OF THE LAWYER/ADVISOR
By Deborah Masucci1
I. THE ROLE OF LAWYER/ADVISORS........................................975
II. LAWYERS ARE RESPONSIBLE TO HELP CLIENTS
CHOOSE THE CORRECT ADR PROCESS .........................976
III. WILL DISPUTE RESOLUTION EDUCATION EXPAND?.....978
In 2016, the International Mediation Institute2 (“IMI”) launched
the Global Pound Conference3 (“GPC”) to engage a modern
conversation about commercial dispute resolution globally with the
goals to learn how disputants practice dispute management and
resolution today, what is needed in the future, and how should dispute
resolvers change to meet the demands of the marketplace. From
March 2016 through July 2017, thirty events are scheduled in
twentyfive countries worldwide to gather information that would answer
these questions. During each event, the same twenty questions are
posed. Five stakeholder groups are represented in the events and can
1. Deborah Masucci is an arbitrator and mediator who is also Chair of the International
Mediation Institute. She is a global expert on dispute management and resolution with over
thirty years of experience in the field and an adjunct at Fordham Law School. For more
information about her background, see MASUCCI DISPUTE MANAGEMENT AND RESOLUTION
SERVICES, www.debmasucciadr.com (last visited Apr. 13, 2017).
2. The International Mediation Institute is a not-for-profit public interest initiative
committed to driving high competency standards for the practice of mediation globally. See
INTERNATIONAL MEDIATION INSTITUTE, www.imimediation.org (last visited Apr. 13, 2017).
3. For more information on the Global Pound Conference, see GLOBAL POUND
CONFERENCE, www.globalpoundconference.org (last visited Apr. 13, 2017).
be categorized as parties,4 advisors, adjudicative providers,
nonadjudicative providers, and influencers.5 The opportunity to compare
and contrast information gathered on the same topics from different
cultures and legal systems is unprecedented. In the end, there will be
robust information collected to guide what is the future of dispute
resolution. This Essay focuses on the events held in 2016. While the
results might change as more data is collected, there are clear trends
in the current data that are consistent with information reported in
other published surveys.
In the same time frame, IMI published its 2016 International
Mediation and ADR Survey6 – a census of conflict management
stakeholders and trends in dispute resolution that provides insights of
stakeholders regarding mediation and appropriate dispute resolution
awareness. Much of the information provided in these two endeavors
overlap and can be seen as a harbinger of what to expect when the
GPC series concludes. As stated above, this Essay focuses on a few
questions7 and the trends that seem to be coming to light from these
initiatives. The first Part will discuss the role of lawyer/advisors: who
is driving the demand for intelligence on dispute resolution, who is
most responsible for the selection of the course traveled, and what
qualifications prepare the lawyer/advisor to serve this important role?
The second Part of the Essay will discuss the role of the courts and
governments in expanding alternative dispute resolution processes
and access to justice. This section also discusses the importance of,
and desire for, more and better education.
I. THE ROLE OF LAWYER/ADVISORS8
Lawyer/advisors play an influential role in assisting clients in
choosing the best dispute resolution mechanism to meet their
resolution goals and guiding them through the process. Dispute
resolution9 is most effective when the parties are integrally involved
in strategic decision-making to select the process to secure the best
results for their business. Who is most responsible for ensuring that
parties involved in commercial dispute resolution understand their
process options? Parties answered that in-house counsel should be
primarily responsible, while lawyer/advisors answered that external
lawyers should serve this role.10 The answer to this question
demonstrates a disconnect between parties and their lawyer/advisors.
The answer may also reflect the tactic by many global companies to
hire in-house counsel who are experts in the field of alternative
dispute resolution11 (“ADR”) so they can collaborate with and guide
the business about their ADR options. When asked which role parties
involved in commercial disputes typically want lawyers (i.e., in-house
or external counsel) to play in the dispute resolution processes, the
parties voted the top two choices as: lawyers should collaboratively
work with the parties to navigate the process, and lawyers should
speak or advocate on behalf of the parties.12 On the other hand,
lawyer/advisors voted to say that they are most effective when
advocating or speaking for parties.13
The current data shows that lawyers want to have a stronger role
in the ADR process than what the clients want them to have. Lawyers
8. The term “lawyer/advisor” is used throughout this Essay because in many jurisdictions
globally, the person advising a party about alternative dispute resolution processes is not
required to be a lawyer. IMI established criteria for mediation advocate/advisor certification
that recognizes jurisdictional differences. See the Nomenclature section for IMI Mediation
advocate/advisor criteria at Competency Criteria for Mediation Advocates/Advisors, INT’L
MEDIATION INST., https://imimediation.org/mediation-advocacy-criteria (last visited Apr. 20,
9. “Dispute resolution” covers the full spectrum of adjudicative and non-adjudicative
processes that a party might use to resolve a dispute.
10. See Aggregate GPC results, supra note 7, at session 2, question 4.
11. ADR includes processes other than court litigation such as mediation, arbitration, and
early neutral evaluation, to name a few. ADR processes may be used during the course of court
litigation, but a judge is not making a decision about the dispute.
12. See Aggregate GPC results, supra note 7, at session 1, question 5.
should be more aware of the expectations of their clients, especially
since it appears that retaining control over the outcome is one of the
three top results parties seek to achieve by participating in a
nonadjudicative process.14 This is all the more important because the data
also shows that external lawyers are the most resistant to change15 and
arguably, using ADR.
Another aspect in this discussion is understanding what clients
seek when determining their dispute resolution path. The responses
from the GPC questions indicate that when parties involved in a
commercial dispute are choosing the type of dispute resolution
process to use, the top goal is efficiency.16 Further, parties seek
reduced costs and expenses by participating in a non-adjudicatory
process, whether through mediation or conciliation.17 This result is
consistent with responses provided by corporate counsel who
expressed their opinion that counsel in an arbitration proceeding
should cooperate better to achieve settlement, including the use of
mediation during the course of an arbitration.18 Parties also look to
combining adjudicative and non-adjudicative processes as the most
effective method,19 as well as a priority to improve dispute resolution
in the future.20
The results show that lawyer/advisors, whether inside or outside
counsel, are jointly perceived as primarily responsible for ensuring
that parties involved in commercial disputes understand their process
options,21 and the possible consequences of each process before
deciding which one to use. This shows us that in order to have an
increased use of ADR in the future, lawyer/advisors of today must
14. See id. at session 2, question 3.
15. See id. at session 3, question 4.
16. See id. at session 1, question 2.
17. See id. at session 2, question 3.
18. See WHITE & CASE, 2015 INTERNATIONAL ARBITRATION SURVEY: IMPROVEMENTS
AND INNOVATIONS IN INTERNATIONAL ARBITRATION 31, http://www.whitecase.com/sites/
19. See Aggregate GPC results, supra note 7, at session 2, question 5.
20. See id. at session 3, question 2.
21. See id. at session 1, question 3.
have a strong and thorough understanding of ADR in order to have
the knowledge and capacity to advise clients on the best dispute
resolution process to use.
Despite the strong predictable increase in mediation training in
the next five years, there continues to be a high desire for mediation
training criteria and qualifications to become more standardized. We
are looking at a future where ADR professionals must meet strong
training and qualification requirements. With parties being more
informed of their dispute resolution options, and an increased
acceptance of ADR, we see an increased need for ADR professionals,
whether neutrals or lawyer/advisors, to be continuously trained about
the nuances of dispute resolution processes. Demand for neutrals and
lawyer/advisors to comply with competency criteria could elevate
ADR to a primary career option.
In July 2013, IMI launched its Mediation Advocacy Competency
Certification criteria.22 The certification criteria were established to
assist clients to identify advocates who are knowledgeable and skilled
in negotiation and dispute resolution processes. In fact, one of the
criteria of “General Knowledge” is an understanding of a party’s
procedural options to resolve a dispute, the advantages and
disadvantages of the different processes available, and the best timing
to trigger each process.23 The general knowledge criteria for
mediation advocates parallels the general knowledge criteria for
mediators and the principle that an effective advocate understands not
only the mediation process, but the entire dispute resolution spectrum.
An empirical study of decision-making published in 2008 provides
evidence that lawyers who are trained in mediation exhibit a lower
decision error rate when making recommendations about settlement
than lawyers not trained in mediation skills.24 Offering such a
mediation certification process provides advocates with a competitive
advantage over others in the field and elevates the profession.
III. WILL DISPUTE RESOLUTION EDUCATION EXPAND?
Governments/ministries of justice have a primary responsibility
for taking action to promote better access to justice in commercial
dispute resolution. Governments across the globe must take measures
to create more awareness amongst lawyer/advisors to increase
available education about ADR and its benefits, and require
lawyer/advisors to have a better understanding of situations when
ADR is best suited for their clients. This is especially important as
business grows cross border and inevitable disputes arise. In his
“Opening Remarks” during the first GPC event in Singapore, Chief
Justice Sundaresh Menon talked about the inevitability of the increase
in cross-border disputes and the need to be prepared to address the
challenges that will arise. He recognized the role of governments in
educating disputants but specifically parties who infrequently are in
court about their process options, emphasizing “appropriate” dispute
resolution.25 The Chief Justice announced the establishment of the
Singapore International Dispute Resolution Academy26 (“SIDRA”) as
a thought leader in Asia for promoting appropriate dispute resolution
and supporting cross-pollination of best practices. Will other regions
be far behind? The courts played an integral role in the advancement
of ADR in the United States during the twentieth century.27 Similarly,
civil justice reform was occurring in Great Britain in the form of the
Wolf Reforms28 and the European Union adopted the Mediation
Directive in 2008.29 These are just a few examples of past court
driven initiatives supporting ADR, but isn’t more needed today?
25. See Deborah Masucci, The Global Pound Conference: The Journey to Determine the
Needs of Users has Started, 9 NYSBA N.Y. DISP. RESOL. LAW. 27, 28 (2016).
26. See SINGAPORE INTERNATIONAL DISPUTE RESOLUTION ACADEMY,
http://www.sidra. academy/ (last visited Apr. 13, 2017).
27. See Thomas J. Stipanowich & J. Ryan Lamare, Living with ADR: Evolving
Perceptions and Use of Mediation, Arbitration, and Conflict Management in Fortune 1000
Corporations 19 HARV. NEGOT. L. REV. 1, 3 (2014).
28. Hazel Genn, What is Civil Justice For? Reform, ADR, and Access to Justice, 24
YALE J. L. & HUMAN. 397, 2-3 (2012).
29. Directive 2008/52/EC of the European Parliament and of the Council on certain
aspects of mediation in civil and commercial matters, 2008 O.J. L 136/3.
Measures must be taken to reach out to the government sector to
proactively promote dispute resolution, and to develop a sense of
understanding and acceptance with the judiciary of the value and
importance that ADR plays in the pursuit to easy and efficient access
to justice. As noted above, governments and the courts play a pivotal
role in educating the public at large and the legal community about
the benefits of integrating alternative dispute resolution processes into
the dispute resolution spectrum. However, despite the programs
instituted by the courts and governments to integrate ADR into the
judicial process, there is still much more work to be done.
Education is the most effective way to improve parties’
understanding of their options resolving commercial disputes.
Participants of the GPC ranked education in business and law schools
as the most effective way to improve parties’ understanding of their
options for resolving commercial disputes.30 There has been a marked
expansion of course offerings in law schools on the topics of
negotiation, mediation, and arbitration. This expansion is partly a nod
to the growth of mediation and arbitration to resolve legal disputes,
and also acknowledges that these skills are necessary for
lawyer/advisors to meet the needs of their clients. Negotiation is a
daily part of a lawyer’s life whether employed in-house or as outside
counsel.31 Negotiation, though, is a daily part of a business manager’s
life. The skill of the front-line business manager to negotiate serves to
reduce and manage conflict within the organization, whether
internally or with external customers, vendors, or business partners.
That skill could effectively deescalate conflict before it raises to the
level of a legal dispute, thus preserving resources for profitable
There is definitely strong interest in more and better quality of
education about dispute management and resolution throughout the
world. Educators perceive large student interest in mediation, but
students generally show disappointment in the fact that course
offerings are either rare or only offered as a secondary course related
to the more primary course on arbitration. Even in North America
30. See Aggregate GPC results, supra note 7, at session 4, question 2.
31. See Cathy Cronin-Harris, Why Take ADR Courses in Law School, 3, AM. BAR ASS’N
(Mar. 2008), http://www.americanbar.org/content/dam/aba/directories/dispute_resolution/
where courses are widespread, the criticism is about the quality and
focus of the courses.32
Outside university circles, interest in training courses is set to
increase in the next five years.33 The quickest expected growth areas
are Asia, the Middle East, and Australia/New Zealand. This idea was
reinforced when responders attending GPC events were asked what is
the most effective way to improve parties’ understanding of their
options for dispute resolution. Measures are already being taken
around the world to include dispute resolution in the curriculum in
law schools. Education in business and/or law schools and the broader
business community about adjudicative and non-adjudicative
processes was the first choice in majority of answers.34
This Essay only scratches the surface as we look at the data
being collected from the GPC. There are trends now, but will they
continue in the same direction as more events are held throughout the
world? There are disconnects between the stakeholders, yet there is
also a symbiotic relationship between disputants, lawyer/advisors, and
governments/judiciaries that needs to be strengthened as the dispute
resolution landscape evolves. Understanding the goals of disputants
and aligning the stakeholders to meet those goals is the path to be
traveled. Education is the fulcrum that all of these partners should
work on so that new entrants into the field can be effective. Education
should not be limited to lawyers but expanded to include business
schools and other settings. Best practices should be shared and
barriers to entry into the field should be leveled while ensuring high
standards for the practice of dispute resolution.
32. See IMI Survey Report, supra note 6, at 40.
33. See id. at 41.
34. See Aggregate GPC results, supra note 7, at session 4, question 2.
22. See IMI Mediation Advocacy Competency Certification , INT'L MEDIATION INST ., https://imimediation.org /imi-mediation-advocacy-competency-certification (last visited Apr . 13 , 2017 ).
23. See Competency Criteria for Mediation Advocates/Advisors, annex 1 , INT'L MEDIATION INST ., https://imimediation.org /mediation-advocacy-criteria (last visited Apr . 13 , 2017 ).
24. See Randall L. Kiser , Martin A. Asher , & Blakeley B. McShane , Let's Not Make a Deal: An Empirical Study of Decision Making in Unsuccessful Settlement Negotiation, 5 J. EMPIRICAL LEGAL STUD . 551 , 586 - 89 ( 2008 ).