Editor: Please describe JAMS International's mission.
Brennan: The long-term mission for JAMS International (JI) is to be as successful in Europe as we have been in North America. JAMS has grown from one office 32 years ago to now having 25 Resolution Centers throughout North America. The more immediate goal for JI is to assemble a panel of multinational, multilingual neutrals from the EU and to attract cross-border mediation and arbitration cases from North America, Europe and other parts of the world.
Editor: Has globalization caused cross-border disputes to increase in number and in complexity?
Brennan: Absolutely. It's a perfect storm, combining globalization with economic difficulty, and people are looking for cost-effective, non-litigation solutions for dispute resolution. While some institutions have reported decreased caseload, our numbers are up due to JAMS's reputation as the world's premiere mediation service provider for complex commercial cases. Our volume of 10,000-12,000 cases per year is substantially greater than that of other institutions.
While our reputation in North America is well established, it is still developing in Europe and is largely limited to exposure with clients regarding matters that were handled by JAMS in North America.
Editor: Did the EU Mediation Directive spur JAMS' interest in going international?
Brennan: The 2008 Directive tasked EU countries - except Denmark, which didn't participate - with implementing transparent laws about cross-border mediation, and each country has responded differently. For example, Italy passed mandatory mediation laws in certain sectors of their economy, so its domestic caseload for mediation literally exploded overnight.
The Directive also gave teeth to the mediation process. Formerly, parties could easily abandon the process or its results, but now courts are enforcing agreements to mediate and are showing resolve to enforce mediation settlements.It's a real sea change from 20 years ago.
Editor: How are your partners involved, and will JI be a fully integrated EU organization?
Brennan: Yes, we are in the process of negotiating license agreements with a number of EU institutions toward that goal, though I cannot divulge specifics at this time. JAMS International is majority owned by our parent, JAMS, in the U.S., and we also have an Italian partner with an ownership interest - the ADR Center in Italy. Current licensee partners include Result ADR in the Netherlands, which connects us with the best neutrals in cases that require a Dutch mediator. Once we screen and engage a partner, they become our first call for pertinent dispute resolution matters, and we are seeking to establish more partnerships, for example, with some of the many well-established mediation providers in the UK.
JAMS maintains a high level of quality control, which is implemented in all our U.S. offices and gives our clients a consistent experience no matter where they are located. We received excellent feedback about our professional, well-trained staff, and we will replicate this service internationally.
Editor: Why is it important for corporate counsel and attorneys in the U.S. to know about JI?
Brennan: It's always important to have choices. Throughout my career, first as a litigator and now in ADR, clients have consistently communicated that they want options. Clients grow impatient with institutions that are expensive, overly bureaucratic or simply don't offer high-quality case management. JAMS is very highly regarded by corporate counsel due to the quality of service from both panelists and case managers. Our case management approach is clear and regimented, and we monitor the process quite strictly. JI's corporate counsel clients will enjoy the same experience in Europe as in the U.S.
Another unique feature is the fact that our neutrals work for JAMS full-time, unlike other institutions where arbitrators might work full-time for a law firm or elsewhere. Further, our neutrals always are assigned to the same case manager, which is a substantial benefit our clients report. This way, they are mutually familiar with one another's working styles and schedules, and the entire process is more efficient and friendly.
Rushton: This point certainly applies to ADR in the UK, where legal work of all kinds is done by barristers, and case management is done by their clerk. JI's full-time focus on ADR coupled with our deep understanding of the industry better qualifies us because we are specialists.
Editor: How will you distinguish JI from JAMS in the U.S.?
Brennan: JI is registered in the United Kingdom, and Matthew, its deputy director, is a UK national. Our first case manager - also a UK national - worked in a barrister's chamber for over 20 years and has substantial experience with managing many dockets at once. Our panel will be composed of neutrals from all over Europe, so it will be multicultural and multilingual, which is an essential component of JI's cross-border reach.
Rushton: While we are separate from JAMS in the U.S., we are not anxious to distinguish ourselves entirely from its successful model, and we will leverage its excellent reputation to help JI grow.
Editor: What makes JI different from other ADR providers?
Brennan: First, our annual volume of 10,000-12,000 cases represents a true accounting without any multiple counting for class actions. More than any other institution in the world, JAMS understood that there was a viable market for former judges or law firm partners to settle cases via ADR. Our numbers vis-à-vis mediation dwarf those of other institutions and reflect that we were unique in having prioritized mediation right from the start. As a result, we have more experience than our competitors, and clients turn to us with confidence.
Editor: What types of cases do you handle and what is the neutral selection process?
Brennan: JI handles complex commercial cases involving IP and class actions, to name just a few. Some of our mediators are qualified in a wide range of general commercial cases whereas other mediators specialize, for example, in construction or insurance.Further, because JAMS is headquartered in California, we have a strong expertise in media and entertainment and seek to fulfill regional demands as needed. While most clients request the services of a particular individual and already know exactly what they want, a small minority rely on our suggestion; thus we aim to have efficient expertise across the whole range of practice areas to meet that demand.
The first group of candidates for our panel was referred by current panelists in North America, who have worked with these individuals before and draw from experience in making recommendations that I can trust. Also, since I spent nine years at the ICC Court of Arbitration andthree years at CPR, I know many excellent people in the field, and I have reached out to see if they would consider coming on board.
Rushton: A guiding principle is what the market says about these individuals. As a journalist, I am very qualified to probe into an individual candidate's reputation and qualifications, and this is a governing factor in our selection process. Having a good feel for the market further distinguishes JI from other institutions, and our hand-picked panels are very different from those of our competitors.
Editor: Are there any practice areas you'll focus on in the beginning?
Rushton: We must respect the different litigation cultures in countries across Europe, for example common law in the UK versus civil law elsewhere. As a result, there are various areas of practice in different cultures that require us to make adjustments. There is disparity even within common law systems, and a comparison of practice areas with the UK and U.S. reveals many differences. JI will aim to cover all of them. Brennan: Yes, and this is the point. Do you remember the Y2K debacle? I was at ICC, and we generated a list of people who were prepared to handle what everyone thought would be thousands of Y2K disputes. Notwithstanding the fact that there were none, my enduring goal is to be responsive to market needs. If clients need a particular expertise or identify an unfulfilled niche, we will build it.
Editor: Are you seeing any cases involved with social media?
Rushton: One example is the super injunctions in place in the UK, which forbid publishing even the fact that an injunction has been taken out. Some argue that this mechanism has been abused by celebrities as a convenience to cover up sordid details of their private life; however, Twitter, as an American-owned company that enjoys First Amendment protections, can publish what it likes. Twitter posts are readable in the UK, regardless of being in violation of a super injunction. So there is whole set of complex issues emerging from social media involving potential defamation and libel claims.
Brennan: No doubt the issue of social media will continue to be significant, and there are very interesting conflicts issues arising from social media sites.While these issues are not insurmountable, there certainly is a learning curve, and we intend to stay ahead of it.
Editor: What opportunities await as the JI panel is assembled and business is launched?
Brennan: The opportunities are boundless. Nobody anticipated our success when JAMS was founded in the 1970s, but it turns out that we really identified a need in the market to resolve disputes and get on with business. ADR allows business to get back to work. I hear nightmare stories about five-year arbitrations and crippling litigation, so mediation is finally being recognized as the better business solution in most cases.
There is also a generational aspect to the growth of mediation in the U.S. over the last 20 years. Younger people don't have the same skepticism and easily navigate Internet sites like eBay, on which you've got to mediate in order to function. The younger generation is completely comfortable with these alternative mechanisms, and this trend will only continue and grow.
Rushton: In the UK, we take heart in the way mediation has evolved in the U.S. as a default option. While we are still a few evolutionary steps behind, we anticipate catching up, and JI holds all the potential to achieve this goal . Litigation remains the default option in the UK, but mediation numbers are growing.
Editor: Is there anything else you'd like to tell our readers?
Brennan: I'd like to invite your readers to contact us via email. We're available to answer questions and offer expertise in advance of our September launch event in London.
Published August 1, 2011.
