CEDR's 8th Mediation Audit - an interesting read.....

CEDR has recently published its 8th survey of commercial mediator attitudes and experience. It makes very interesting reading both for what remains largely the same on the mediation landscape, confirmation of trends which we have all observed, but also for some new developments and pointers for the future. CEDR have also surveyed lawyers representing clients in mediations and will publish a separate report. They do however usefully cross refer to some of the findings from that survey in this report.

Mediation success rates are still extremely high-89%! This up 3% from 2016, a not statistically significant rise, but yet further confirmation of the hugely valuable contribution which mediation makes to dispute resolution in the UK.  Before turning to some of the more noteworthy stats, the most interesting observations in the survey relate to the mediation process itself, perceptions as to the effectiveness of participants and changes to the dynamics and structure of the mediation process.

Mediators describe only 63% of lawyers representing clients in mediations as having performed very or quite well and a whopping 14% as performing less than adequately. Turning the tables, 83% of mediators were rated as performing very or quite well (53% in the “very well” category). 43% of mediators report poor negotiation strategies and over reliance on advisers as frequent occurrences.

The old rather arid debate as to the respective merits of evaluative vs facilitative mediation continues to rumble on. Mediators were asked to score their philosophy with 0 meaning fully facilitative and 10 fully evaluative. This was compared with the expectations of parties and their advisers. The latter were clearly more strongly in favour of an evaluative approach. Mediators reported moving across the spectrum from facilitative to evaluative as mediations progressed through the day towards the hoped for final deal.

As to procedural trends, 25% of all comments report increasing resistance to joint meetings. This appears to be lawyer driven, arguing that no useful purpose is served by such meetings, a view not shared by the majority of mediators. On a more positive note, mediators and lawyers report that negotiations at mediations are getting tougher and participants are getting more skilled as familiarity develops. There is a growing sense that mediations are becoming more streamlined and get to the nitty gritty more quickly. Lawyers and their clients seem less inclined to let the mediator entirely dictate how the mediation should be run.

The report is based on 336 responses from mediators. This may not seem a huge number but the survey notes that the market remains dominated by a select few, with a group of around 200 individuals involved in 85% of non-scheme mediations (an average of 35/40 cases each). Even amongst so-called Advanced mediators (who describe themselves as reasonably or very experienced), only 60% consider themselves as full time mediators and over half of these admit to less than 10 mediations a year.

The survey’s conclusion is that mediation has become an established feature of the conflict landscape. A new, albeit small, profession has emerged. Its size being constrained both by the volume of work (estimated a c 12,000 cases a year), and the inescapable fact that appointments come from experience and experience comes from appointments. One could add that the typically adversarial method of appointment in ad hoc mediations, with parties each producing lists of candidates, tends to favour the appointment of well-established mediators known to all parties. Interestingly, although professional reputation and experience have long been the clear winners as factors determining individual appointment, availability has crept up as a significant factor.

Diversity is recognised by the survey as one key to expansion. Of the respondents to the survey, only 35% were women and women represent only 24% of the group of Advanced mediators which is 5% less than in the 2016 survey. Just 10% of respondents were from Black, Asian and minority ethnic groups. There is recognised to be a need for new and diverse talent. However 51% or respondents to the survey were not lawyers.

The survey has some very interesting observations on the changing mediation market place.  Historically ad hoc referrals have led the mediation expansion but this growth has tailed off. There has, on the other hand, been a remarkable growth of scheme-related activity such as those supported by NHS Resolution and by the Court of Appeal and other courts. This area of activity has grown by 45% in two years and accounts for some 4,500 cases or 37.5% of all mediations.

The changing shape of the market is also having an impact on fees. More experienced mediators have seen a drop in average fees of 19.4% to £3627. There are probably two key factors here - scheme mediators are generally less well remunerated than ad hoc and, as more people join the august ranks of Advanced mediators, they probably dilute the average earnings of the group as a whole.

As the survey report notes, the most compelling stats come from the response of lawyers to the question - how were cases concluded in the past year? Only 4% went to trial but 45% were settled at mediation. “Disruptive Innovation” is de rigeurin most fields of endeavour and mediation certainly qualifies in terms of “disrupting the ancient regimeof attritional conflict.”

The full audit can be found here.