Last year, a survey was conducted among senior in-house counsel of the Fortune 1000, to follow-up on the findings of the influential 1997 Cornell survey.  Thomas J. Stipanowich of Pepperdine and J. Ryan Lamare of Penn State have now prepared an analysis of that new survey, and in an important article they have made trenchant conclusions with respect to trends in commercial dispute resolution.

They find, among other things, that more corporations have embraced mediation as a management tool and foresee its continuing use — as well as other informal approaches top early resolution of conflicts — in a wide spectrum of disputes.  By contrast, arbitration has “reached its tipping point,” as fewer major companies use it to resolve many kinds of disputes and question its future use.

The article, available to be downloaded here, describes both the findings and the methodology of  a landmark survey co-sponsored by the Cornell University’s Scheinman Institute on Conflict Resolution, the Straus Institute for Dispute Resolution at Pepperdine University School of Law, and the International Institute for Conflict Prevention and Resolution.  The authors conclude that, analyzed in light of the 1997 Cornell survey and the 2011 Rand report, the survey:

presents dramatically contrasting pictures of the evolution of the two primary ADR choices, mediation and arbitration.  While mediation appears to be even more widely used than in 1997 and is today virtually ubiquitous among major companies, the survey indicates a dramatic fall-off in the use of arbitration in most types of dispute: commercial, employment, environmental, IP, real estate and construction…. At the same time, the survey offers tangible evidence of corporations’ growing sophistication and increasing emphasis on control of the process of managing conflict, including neutral evaluation and early case assessment, approaches aimed at deliberate management of conflict in the early stages, as well as control over the selection of third-party neutrals and increasing sophistication in the use of ADR.

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