14 Dec 2022
The pace and ‘busyness’ of the professional context does make taking a step back to reflect and take strategic decisions really difficult. And even if we reflect, knowing what to do can be tough; particularly when reflection leads to the conclusion that geo-politics are influencing our lives, not just on a macro level, but at the business and even individual level.
The war in Ukraine taught many, particularly those privileged enough not to have had to deal with open interstate war on our continents for 77 years, or longer, that we have more in common with other parts of the world than we might have thought. This came on top of the lesson that Covid taught all of us that global public health is a massive issue not just for geo-politics, but also for every single one of us individually; something which is painfully obvious to many without secure water, energy and healthcare supplies on a daily basis.
The six-webinar series ‘Commercial Stability in a World of Conflict’ that Ciarb ran between April and October 2022 provided an opportunity to do just that – step back and reflect with the help of people from around the world. A collaboration between Ciarb and JAMS, the series opened a global conversation with panellists from 11 different countries across 4 continents, it was attended by 1000+ people, with the series having now accrued 2000 watch-backs on Ciarb’s YouTube channel.
So with the end of the year fast approaching I have been reflecting on this reflection. (How very ‘meta’ you might say!) Why did this series capture the attention of so many Ciarb members? What did it cover? What am I taking with me into 2023? I’d be interested to hear your views. Here are my reflections.
In my experience many of those involved in mediation, arbitration and adjudication are often interested in the wider world, particularly in terms of how it relates to conflict and disputes. However, one of the risks of this is the identity issue of being a dispute resolver; we should not just be able to arbitrate or mediate, we should also be able to bring world peace.
Therefore, underpinning the whole series was the encouragement to differentiate between underlying conflict and acute disputes. By this definition underlying conflict refers to conflicting needs and interests that cannot be simultaneously met without fundamental shifts, changes, or transformations at a systemic level. Acute dispute refers to competing needs where creation of additional value, compromise on quantity of ‘value’, the use of real complementary differences in views and or improvement in relationships and/or change in understanding can lead to a ‘resolution’ of the dispute. If these situations are not differentiated it can be confusing and whilst used interchangeably in the ADR context, in the international socio-political they are often used in this distinct way. I think therefore that this series caught wider attention because it brought the small and the large, the micro and the macro together effectively; it crossed a boundary between two worlds that could helpfully talk to each other more.
Two of the key issues that really stuck with me from the first webinar of the series with Michael Mcilwrath, Sheila Bates and Ranse Howell were Enterprise Risk Management (ERM) and the building/maintaining the adaptability of systems in the face of fast-paced change. Without them it is extremely difficult to be resilient in a commercial context. Dispute management is anticipating what is likely to morph into a dispute and part of that is having the systems to deal with the unforeseen. The advice was clear and consistent, even if implementing it is tough: the most important thing is to take some breathing space. In the words of the White Rabbit in Alice in Wonderland (or Dwight Eisenhower, or Clint Eastwood – depending on who you believe) ‘Don’t just do something, stand there’.
A fascinating discussion between Olena Perepelynska, Karolina Jackovicz, Tim Hardy and Ranse Howell in the second webinar on the role of neutrals – Arbitrators, Mediators and Adjudicators – raised a whole range of issues; some of which I was more familiar with than others. These included: Force majeure clauses, whether we as neutrals are ever actually neutral, and calls to adapt our third-party skills as needed. It also highlighted some of the boundaries of what we can and can’t do as third parties, and following the important insight of Dekha Ibrahim Abdi, the importance of knowing when to bow out and hand over to someone else; however hard that might be.
The third in the series, ‘Commercial Organisations and Political Conflict’ brought Laura Abrahamson, Jane Gunn, Molly Melin and Niki Borofsky together. There was a real focus on commercial organisations as political influencers, as well as corporations impacted by politics. The result was the sharing of insights on systemic change. This reinforced the importance of risk analysis being broad enough to encompass political risk and the potential for using ‘mediators in reserve’. It also highlighted the degree to which existing research points to the connection between commerce and international conflict and the many contexts in which commercial bodies are influencing political conflict for better and worse.
The ‘Civil-Commercial and International Law’ webinar brought together Ana Gerdau De Borja, Francis Xavier, Victoria Marquez Mees and Niki Borofsky. They looked at public and private law, and the contrasting views of legal rights when viewed through the Human Rights lens – often the familiar lens for communities involved in disputes over land and resources, as opposed to the commercial law focus of local and multinational commercial organisations. This split is so clear that the other side of the situation is often difficult to comprehend. As someone who has swapped between the two contexts during my career, it is an ‘incommensurability’ with which I am familiar. Unwittingly we managed to replicate this, as some parts of the discussion literally conveyed this difficulty in a fascinating live form.
A revisiting of the first four parts of the series with Michael Mcilwrath and Sheila Bates, produced the fifth in the series which tackled the issue of ‘When the Acute Becomes Chronic’. This really reinforced the need to set up mechanisms to manage underlying conflict as well as the systems to settle acute disputes. And, once again, the key phrase emerged: ‘Go slow to go fast. In the moment of crisis, take time. In the process of contracting, remember crisis.’
The final episode of the series really drew together the multiple issues of how effective dispute resolution impacts on real life. Specifically, it looked at how the ability of people to achieve all the things they want to achieve socially and commercially depends upon their ability to access effective conflict management and dispute resolution in the context of an ongoing, escalating climate crisis. Using some of the sustainable development goals to bring into focus the degree to which the developed and emerging economies are struggling with some of the issues around delivering access to justice, Mahamed Rajah, Ximena Bustamente, Hiro Arogaki and Niki Borofsky delivered a fascinating and reflective session on learning from some of the experience in systemic terms from South Africa, Ecuador and the US.
So what do I take away? The interconnection of commercial dispute resolution and underlying conflict systems is ever present. When we lose sight of it, we run the risk of hobbling our efforts as dispute resolvers. This is because insight into what we can and can’t achieve has to be grounded in honest self-reflection and insight. It depends on the awareness and humility to draw on the knowledge, skills and attributes of a whole range of other professionals to get to where we, and those we work with and for, want to go to.
The six episodes of this series available on Ciarb’s Youtube channel.