Useful articles on mediation
Jacqui Joyce looks at the most recent survey of mediators and lawyers.
Every two years the Centre for Effective Dispute Resolution (CEDR) produces a survey of the civil and commercial mediation landscape.
Contribution to the economy
Excluding mega cases, it is estimated that the value of cases mediated each year is £11.5 billion (up from £10.5 billion in 2016), saving businesses around £3 billion a year in wasted management time, damaged relationships, lost productivity and legal fees. With an estimated total fee income for the mediation industry of £30 million that is a 100:1 return on investment for the UK economy.
20% growth of mediations
CEDR estimates that the number of commercial mediations has increased by 20% on 2016 (from 10,000 to 12,000 per annum). The majority of this growth has come from scheme mediations such as those supported by NHS Resolution, the Court of Appeal and other courts. Scheme mediations have grown by 45% in two years and now account for 37.5% of all mediations. There has been growth of ad hoc referral cases at a relatively modest 9%. As before, most of these (70%) are through direct referrals.
Is it still working?
Whilst in 2016 there was a reported dip in the number of mediations settling on the day, this seems to have righted itself with 74% settling on the day and 15% settling shortly after mediation. The report also refers to “accounts of many mediators and lawyers that the value of the process goes far beyond the binary question of whether or not settlement is achieved, and that many less tangible impacts, such as clarifying the issues and narrowing areas of difference, are also of real importance.”
There are reports of an increasing resistance to joint meetings, particularly at the start of the day which seems to be largely driven by lawyers who argue that no purpose is served by such meetings given that the parties are already familiar with each other’s cases. This is a view which the majority of mediators do not appear to accept (including this one). Opening meetings need to be handled carefully but, in my view, are rarely a negative thing and often lead to unexpected amounts of frank discussion which can save huge amounts of time.
An interesting aspect of the survey of lawyers is illustrated in the following table which is the number of client matters they have worked on in the past year and which have concluded.
|Settled by negotiation – pre issue||24%|
|Settled by negotiation – post issue (pre directions)||7%|
|Settled by negotiation – post issue (post directions)||12%|
|Settled by mediation||45%|
|Settled by arbitration||4%|
|Settled by other ADR process||4%|
|Settled at trial||4%|
This shows that mediation is by far and away the method by which most cases settle. Considering this is still a relatively new concept it shows how effective it has been in becoming part of the ‘norm’ in civil litigation.
The mediators – diversity?
38% of mediators describe themselves as novice or having some/limited experience (doing no more than four mediations a year). The remaining 62% describe themselves as ‘advanced’ mediators who are ‘reasonably’ or ‘very’ experienced. Of those advanced mediators, 60% describe themselves as ‘full-time’ (up on 40% in 2016) although as the report says clearly full time is a ‘term of art’ as 59% still report undertaking less than 10 mediations a year.
The age of the average female mediator is 51 and the average male is 59. The advanced mediator group are only a year or so older than the average. This shows that mediation is still very much a second career. It is also still a career dominated by the white male. Just 35% of respondents were women (the same as in 2016), with women in the advanced group being just 24% (down from 29% in 2016). By way of comparison the report sites that the Law Society shows that 50.1% of practising solicitors are women.
The report also highlights that just 10% of respondents categorise themselves as being from Black, Asian and minority ethnic groups (compared to 16.5% of solicitors). Also, there are just 5% of mediators reporting a disability compared with statistics showing disabled people representing 19% of the working population in the UK. The report states, however, that the 2% of mediators identifying themselves as lesbian, gay or bisexual is consistent with estimates from the Office of National Statistics.
There also seems to be a slight reversal of the trend away from lawyer mediators noted in previous survey with 49% of mediators being lawyers, rising to 61% in the advanced group.
How do mediators get their work?
Mediators have slightly different ideas to the lawyers that appoint them as to the reasons that they do so. However, both seem to agree on the main reasons just not quite in the same order.
|Significance for mediators||Reason for appointment||Significance for lawyers||Reason for appointment|
|1||Professional reputation – experience/status||1||Availability|
|2||Availability||2||Professional reputation – experience/status|
|3||Fee levels||3||Sector experience|
|4||Professional background/qualifications||4||Fee levels|
|5||Sector experience||5||Professional reputation – mediation style|
|6||Recommendation – by lawyer in previous case||6||Professional background/qualifications|
|7||Professional reputation – mediation style||7||Location|
|8||Recommendation by provider||8||Recommendation – by lawyer in previous case|
|9||Location||9||Repeat business – with lawyer|
|10||Repeat business – with lawyer||10||Recommendation – by client in previous case|
For those aspiring to break in to the market it would appear that things such as mailshots, websites, PR (articles and speeches) and directories have little impact.
How are we all performing?
Lawyers and clients – getting it right
As with most things, this depends on who you ask. According to mediators fewer lawyers and clients are performing very well or quite well. 63% of lawyers (down from 69% in 2016 and 71% in 2014) and 61% of clients (down from 64% in 2016 and 62% in 2014).
This is a worrying trend, although if you ask lawyers their view is that 70% of their counterparts behaved very well or quite well (up from 60% in 2016 and 54% in 2014) and similarly 72% of clients (up from 70% in both 2016 and 2014). Perhaps this mismatch of perceptions could be down to mediators providing an effective buffer of some not so good behaviour – which is after all part of the reason they are there.
Lawyers and clients – getting it wrong
There is also still a consistent number of lawyers and clients who are performing less than adequately or poor but with more agreement on how many. Mediators report this at 14% for lawyers and 15% for clients (both of which have only varied slightly over the years). Lawyers report 14% of lawyers and 10% of clients.
Interestingly, mediators have reported a large increase of two problem areas in the behaviour of client negotiating teams. Whilst group think (36%), poor negotiation strategy (43%) and over-reliance on advisers (42%) have stayed steady (but still high) inter-personal conflict within the team has risen form 14% in 2016 to 21% in 2018, and disagreement about strategy has more than doubled from 7% in 2106 to 16% in 2018. When analysing the comments of mediators as to what advice they would like to give to parties on how to improve their performance and get the most out of the mediation the theme that prevailed in the report was for them to ‘do more preparation’. There are also reports of both lawyers and mediators bemoaning both the late arrival and decline in standards of mediation bundles. Anecdotally, some mediators also refer to there being less ’commitment’ to the process by teams including the availability of key individuals and/or information – this again comes down to a lack of preparation.
The feedback on mediators is consistent with previous years. 83% were reported as performing very well or quite well (2016 – 81%), 13% adequately (2016 – 14%) and 4% less than adequately (2016 – 5%).
All in all though the results are positive and mediation continues to provide an effective and value for money solution to many disputes.
A full copy of the report can be accessed at https://www.cedr.com/docslib/The_Eighth_Mediation_Audit_2018.pdf
A fuller version of this article first appeared in the Estates Gazette