Changing trends in mediation?

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Jacqui Joyce looks at the latest mediation surveys by CEDR and the Civil Mediation Council.

The Seventh Biannual Mediation Audit was released this month and shows some interesting changes to the trends of past years.

The market

The current survey estimates 10,000 cases per annum, just a slight increase on the 9,500 in 2014. It also reports that 70% of cases are being referred direct to individual mediators rather than through providers, with 145 mediators doing 85% of the work (about 40 cases each per year).

The mediators

54% of mediators consider themselves to be ‘reasonably’ or ‘very’ experienced with only 40% of those considering themselves to be full time mediators. Over half of this advanced group report doing less than 10 mediations a year.

The average age for women mediators is 50 and for men 57, with 35% of mediators being women (increased from 26% in 2014). Most of this increase, however, appears to be in the ‘novice’ group of mediators, with a rise from 30% to 42%.
Diversity figures, whilst slightly better than 2014, still show white mediators making up 92% of the respondents.

Non-lawyer mediators

For the first time less than half of the respondents were legally qualified (43%). In the advanced group the number of lawyers has fallen significantly in recent years (2012: 70%; 2014: 60%; 2016: 57%). The report suggest this is due to the increased impact of other professionals joining the market rather than there being fewer lawyers joining.

Appointment criteria

Both mediators, and the lawyers appointing them, continue to rank ‘professional reputation- experience/status’ as the most significant factor when choosing a mediator. Mediators rank ‘professional background/qualifications as second (lawyers put this at fifth). Conversely lawyers consider ‘professional reputation – mediation style in second place (with mediators putting this at fifth). There is a similar disjoint between fees (lawyers put it at fourth, mediators at seventh) and availability (lawyers at sixth, mediators at fourth).

Both mediators and lawyers have increased the importance that they place on ‘sector experience’, which is now ranked at third place by both.

Settlement rates

It would seem that mediations are getting ‘harder’. There is evidence that mediations are taking longer. Although the aggregate settlement rate has stayed at 86%, the amount of mediations settling on the day has dropped from 75% to 67%. Those settling shortly after mediation has risen from 11% to 19%. There is no explanation for this change although this could be linked to the de facto compulsion on parties to mediate rather than risks adverse costs orders. Anecdotally mediators are commenting that parties are coming to mediations because they are ordered to and are not always engaged. However, the figures imply, that even if this is the case, settlements are still being achieved, albeit after the day, showing that the process does work even if not always immediately.

Performance of lawyers/clients in mediations

Mediators report that 69% of lawyers and 64% of clients perform ‘quite’ or ‘very well’ at mediations with 19% and 21% respectively performing ‘adequately’. Anecdotally, mediators often site the performance of lawyers as a reason why a mediation will fail.

The biggest areas of concern mediators encountered were ‘over-reliance on advisers’ (48%), ‘group think’ (41%), ‘avoidance’ (24%) and ‘inter-personal conflict within the team’ (14%).

They also reported that they encountered ‘effective leadership of client negotiation team’ on 40% of occasions and ‘good negotiation strategies’ on just 24%.

Overall it looks as though more work is still to be done by participants in effective preparation and participation.

Performance of mediators

On the other foot, lawyers reported that 60% of mediators performed ‘very well’, 21% ‘quite well’, 14% ‘adequately’, 5% ‘less than adequate’.

Examples of common complaints were perceived bias of the mediator and of those who ‘acted as a messenger’.

Facilitative v evaluative

The report touches on the question of whether mediators act in a fully facilitative way or whether they are also evaluative and what they perceive the parties want. Most say they are facilitative although suspect that the parties want them to be more evaluative. Many seem to agree that as the day goes on they may become more evaluative – although there is a fine line between being properly evaluative and doing the more common ‘robust reality testing’. A further report is going to be published on this question together with respondents’ views on mediation techniques which did or did not work.

Financial contribution

Excluding ‘mega-cases’, the report estimates that the total value of cases mediated each year is approximately £10.5 billion (up from £9 billion in 2014). It also estimates that mediations will save businesses around £2.8 billion a year in wasted management time, damaged relationships, lost productivity and legal fees. The estimated aggregate value of the mediation profession in terms of total fee income is £26.5 million.

Jacqui Joyce (A slightly longer version of this article first appeared in the Estates Gazette).

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