Law firms are vital to clients in determining whether and when they should use alternative dispute resolution (ADR), according to research by City firm Herbert Smith.


Only six out of the 21 FTSE-100 companies surveyed said their in-house lawyers had attended mediations as lead advocates without external lawyers, and even then on 'larger, more complex disputes' they would usually attend with external lawyers. Mediation was overwhelmingly reported as the ADR method of choice by respondents.



Barristers did not get such a positive response. A 'significant number' of respondents said having barristers present at the mediation 'was more likely to lead to confrontational opening sessions and further polarisation of positions'.



But it is those law firms that have a proactive approach to ADR that get higher marks for client satisfaction with the process, according to the report. Many companies waited for their law firms to tell them whether they should turn to ADR or not, but judged their satisfaction on whether it had been suggested.



At the report's presentation in London last week, Kathy Bryan, head of the International Institute for Conflict Prevention and Resolution (CPR), backed that finding. Her experience in the US led her to believe that in-house lawyers must take the lead in opting for ADR whenever possible, she said.



Though the relationship between clients and firms is vital, it is a tricky one that can often be 'uncomfortable', commented Tony Willis, a mediator at London set One Brick Court. But mediators also need to make sure they do not oversell what can be achieved with ADR, he added. 'There are fewer rabbits in hats than the training suggests,' he said.



However, law firms may well be leading their clients in terms of measuring the success of mediation. One result of the report that was 'surprising', said Alex Oddy, head of ADR for Herbert Smith, was that clients seem to be failing to measure the success or failure of their use of ADR.



Fewer than a quarter of FTSE-100 companies recorded any information on mediators they had used or mediator performance, the report found. This compared with 48% of leading US companies, according to recent research by CPR.



Also a surprise, Mr Oddy said, was the reluctance to use ADR clauses in contracts. Respondents almost unanimously said they preferred not to use them in favour of flexibility further down the chain of dispute.



Rupert White