Taylor Wessing and the Bucerius Center on the Legal Profession of Bucerius Law School have jointly conducted a study on what in-house lawyers in Germany expect of their external lawyers in conflict management. On Taylor Wessing’s part, my Hamburg partner Axel Bösch had the lead on this project. If you would like to receive a copy of the study, please let Axel or me know.
For the study, twelve in-depth interviews were conducted with in-house lawyers across businesses of different industries and sizes. I particularly liked this quote, as it appears to capture some deeply rooted beliefs about Germans, authorities and disputes:
“I do wish that something like Dispute Adjudication Boards were regulated by law in Germany, too. Because this is what we Germans rely on. We trust the law. And I am not looking at myself as a private individual, but I am looking at the public authorities. In many areas of the public authorities the belief prevails, [if] I cannot conclude a settlement agreement, mediation does not get me anywhere and I need a judgment, I need a decision that will justify to my superiors what I am doing”
Here is a summary of some of the key findings:
- Despite the implementation of the Mediation Act last year, numerous ADR initiatives and “verbal openness” towards alternative proceedings, litigation in the state courts is the approach customarily taken when negotiations have failed.
- Typically, external lawyers only are being involved at the litigation stage. They are usually not instructed to carry out a comprehensive analysis of the case before that stage.
- Businesses do not use the full range of ADR proceedings. They do not approach external counsel to advise them on the choice of the proceedings and the selection of the neutral third party”, because a systematic approach to these issues is rarely adopted.
- To complicate matters, external lawyers are regarded as being sceptical towards alternative proceedings. From the businesses’ point of view, external lawyers do not make efforts to promote the use of alternative proceedings.
- In accordance with the prevailing philosophy, in selecting outside counsel, the focus is on the “classic” criterion of expertise in the subject area and not on expertise in ADR methodology.
The study also discusses ways to improve the cooperation between businesses and outside counsel, and recommends actions that can be taken – including the use of conflict management systems such as the one designed by DIS, which we covered in an earlier post.
However, one ought to note that the study was slightly biased against ADR, so to speak, as businesses that are actively engaged in the Roundtable Conflict Management und Mediation der deutschen Wirtschaft (RTMKM) were deliberately not included in the sample. It is fair to assume that having some RTMKM member firms in the sample would have resulted in a different picture, showing some sophistication in the implementation of conflict management techniques.