In lots of ways, we think.
One of us was Prime Minister of Australia and another was Chief of Staff to the longest serving Labour Prime Minister in the UK. With those years at the heart of Government come many insights about its strengths and weaknesses, including that for legal disputes, commercial considerations may often not be the key driver. Instead, decision making can be influenced by public opinion, party politics, personal ambition, the allocation of scarce financial resources, the media, a nation’s history, geo-politics and treaty obligations.
The resolution of large-scale legal disputes with a political angle need people with an understanding of these drivers.
Too often the public good and commercial interests fall foul of complex and costly disputes. Governments and the private sector at a national and international level can end up bogged down in disagreements with little prospect of a quick resolution. This serves neither the public good, nor good business. We all lose out.
Political skills and experience of government as well as the mediated end of civil wars can provide an additional way to resolve major international legal disputes.
To get things done as Prime Minister requires a combination of leadership, policy innovation and negotiation. This requires people to put the political cudgels to one side and listen to one another to find out what everyone’s bottom line is and how a consensus can be achieved. The greatest satisfaction in politics comes when that pathway to a big reform becomes clear.
Likewise, we believe that years spent trying to persuade governments and armed groups to resolve their conflicts through mediation rather than war, from Northern Ireland to Colombia to Afghanistan, provides lessons that can work also in legal disputes. This is so particularly for those complex conflicts involving both governments and companies where politics, business interests and personality intersect.
We have come together to develop and offer a new approach which blends the skills of statecraft, conflict resolution and legal expertise which can pay real dividends in solving long running disputes, allowing access to the key decision makers, particularly in Government. If you are negotiating with someone who cannot make the final decision, then a mediation is likely to end in failure and disappointment.
It is also a model which requires the mediator to be proactive right from the start and to spend time getting to know the parties’ positions and needs by shuttling between leaders on both sides. That means that when the parties are finally brought together for a mediation there is already a zone of possible agreement, which transforms the prospects of reaching a settlement that works for all.
Even before the pandemic, there was increasing pressure on both the public and private sector to demonstrate ethical leadership and address global challenges like climate change and inequality. As businesses and governments reshape their ways of working in the wake of Covid, there is a real opportunity to embrace new approaches to resolving disputes to the benefit both society and shareholders.
Of course, there will always be the disputes that need to be litigated and taken to the bitter end, but there are many involving Governments and the Private sector that do not.
This blog is written by LIDW speaker Jonathan Powell, and Former Prime Minister of Australia, Julia Gillard.