The current state of mediation

Jacqui Joyce Trends Leave a Comment

The Centre for Effective Dispute Resolution (CEDR), in June, published its Sixth biannual audit of the mediation profession and the lawyers that instruct them.

The market

It is estimated that the current size of the market is in the order of 9,500 cases per annum. This is a year on year increase of about 9% from 2012, although the pace of growth is slowing. The estimated value of cases mediated each year is £9 billion (2012: £7.5bn) and this year it will save business around £2.4bn in wasted management time, damaged relationships, lost productivity and legal fees.

The mediators

CEDR estimates that around 130 individuals are involved in around 85% of all non-scheme commercial cases (this has grown from 100 individuals in 2012). 56% classed themselves as advanced (‘reasonable’ or ‘very’ experienced) but only just over half of that group (52%) reported undertaking more than 10 mediations a year.

Demographic

Mediation is still dominated by older, white, men with 96% of respondents classifying themselves as white (unchanged since 2010). Females account for 26% of respondent mediators (an increase from 22% in 2012 and 19% in 2010). The average female age is 50 and male age is 57. This is, perhaps, hardly surprising as most mediators draw on their own experience in their chosen field in the mediation process and parties value the mediator’s status and professional reputation when making appointments.

Full v part time mediators

Even amongst the most experienced mediators, only 47% characterised themselves a ‘full-time’ with the majority still combining mediation with another profession. However this percentage has risen from 37% in 2010.

Fees

The average fee for an experienced mediator is £3,820 per mediation (with 1.3% charging £8,500 plus).

Why a mediator is chosen

The mediators and lawyers responding had differing priorities as to why mediators are appointed. Mediators ranked the top five reasons as being:

    1. Professional reputation – experience/status
    2. Availability
    3. Professional background/qualifications
    4. Recommendation – by lawyer in previous case
    5. Fee levels

Those doing the appointment stated the top five to be:

    1. Availability
    2. Professional reputation – mediation style
    3. Professional reputation – experience/status
    4. Professional background / qualifications
    5. Fee levels

Success rates

The success rates for mediations continue to be consistent with previous years. Mediators reported that 75% of cases settled on the day, with another 11% settling shortly thereafter giving an aggregate settlement rate of around 86%.

Performance of lawyers/clients in mediations

Overall mediators believe lawyers and clients are performing better than in 2012 – 64% doing quite or very well then and 71% now. That statistic was supported by answers from lawyers who thought that 54% of other lawyers and 71% of clients performed well or very well. However they also thought that 20% of lawyers and 15% of clients performed poorly.

Mediators’ performance

The lawyers were also asked to rate the mediators’ performance. In 2012 they thought 69% of mediators were doing quite or very well. That statistic has now risen to 82%. However, as CEDR points out, these results might be down to lawyers knowing more about mediators and choosing better ones.

Encouraging mediation/Jackson

76% of mediators thought that the civil justice system should be taking a more directive approach towards the promotion of mediation (up from 62%) with 15% favouring mandatory mediation. Lawyers were less convinced about toughening up the system. Although in a month when the courts have awarded indemnity costs against a party for refusing to mediate, some would say the system is already robust (Garritt-Critchley v Ronan [2014] EWHC 1774 (Ch))

The overwhelming majority of both mediators and lawyers thought it was too early to tell if the Jackson reforms had had an impact on the number of cases coming to mediation and whether they had impacted the ease/difficulty of settling cases at mediation.

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

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