The Centre for Effective Dispute Resolution has published its 10th report on the attitudes of civil and commercial mediators and lawyers in the UK mediation industry.
Is mediation still fit for purpose, and can it cope with the possibility of mandatory mediation?
Has mediation survived the Covid lockdowns?
The last survey was for the period to 31 March 2020 (just prior to the pandemic) and estimated the overall size of the market at around 16,500 cases per annum. The pandemic did trigger a drop in activity by 35% over the period of March to September 2021. However, the market has recovered, with figures for the year ended 30 September 2022 showing a market of around 17,000 cases – about 3% up on pre-pandemic levels.
Interestingly, 64% of commercial mediation cases are still being conducted online. While this is below the 89% being online during the pandemic it is still, in my view, a surprisingly high amount – and would point to online mediations remaining part of the norm.
My personal experience is that most mediations have now gone back to face-to-face, but some are still online where parties are in geographically separate locations (such as different countries) or there are a lot of people involved who are difficult to get together in person.
Is mediation still effective?
Mediations continue to be remarkably successful. The aggregate settlement rate is 92% (72% on the day of the mediation and 20% shortly after). It is estimated the value of cases mediated each year is £20bn and that, by achieving earlier resolution rather than litigation, this will save businesses around £5.9bn a year in wasted management time, damaged relationships, lost productivity and legal fees.
The survey suggested the aggregate value of the mediation profession in terms of total fee income is around £65m (just over 1% of the savings – not a bad return on investment).
Who are the mediators?
Previous audits had shown an upward trend in the number of mediators who were not lawyers, but this has fallen back. Of the advanced mediator field (those who describe themselves as reasonably or very experienced), 67% were qualified lawyers, a significant increase on the 56% reported in 2020. The authors of the report speculate this may be because “lawyer mediators have been more successful in sustaining their careers across the turmoil of the past few years”.
The average female mediator is 54 (2020: 53) and average male is 63 (2020: 60). The advanced mediator group are two years older and, of that group, 37% is female. This is in line with the Law Society data showing women make up 33% of private practice partners.
In terms of disability (6%) and non-heterosexuality (5%), mediators are on an equivalent level to lawyers. However, in terms of ethic diversity, mediators fall short, with only 8% coming from ethnic minority groups compared with 17% of solicitors.
Is the profession ready for mandatory mediation?
The government continues to investigate the introduction of mandatory mediation, and at the moment is focusing on proceedings allocated to the small claims track of the County Court (generally cases valued under £10,000).
However, the report recognises that “any broader expansion of mandatory mediation may well create a wider need for mediators” and has looked into whether there would be capacity in the mediator marketplace to handle additional work that might then become available.
One statistic that surprises me with every report (and has not varied substantially) is the feedback from mediators as to how little work they are doing. The majority of novice and intermediate mediators reported personal involvement in no more than four mediations a year. More astoundingly, of the 76% of mediators who categorise themselves as full-time, 49% of them report undertaking fewer than 10 mediations a year.
Mediators were asked how many days per year they might be available to mediate higher-value cases if there were mandatory mediation. There was a wide variety of availability figures, resulting in “a median response of 50 days and an arithmetic mean of 83 days”. Overall, it is estimated there is a market capacity of almost 54,000 days.
Mediators were also asked what fees they would accept for this work. Again, there was a wide variety of responses, but the arithmetic mean target was £1,826 per day (the range being between £100 and £5,000 per day).
Interestingly, the report states: “For the majority, fee levels are not a major consideration: if fees of only half of their target were offered, average availability would drop by only 2% and, similarly, if fees were doubled, mediators’ reported availability would rise but only by 3%.” It goes on to state: “These results are consistent with the general evidence that there is a considerable surplus capacity within the marketplace and that, provided they achieve a sustainable income level, the majority of mediators are currently more concerned with gaining experience through taking on more cases than they are with increasing fee rates.”
Regulation of mediators
The other concern that is raised by the government regarding compulsory mediation is that the public needs to be able to trust that mediators are good at what they do – which will, in my view, inevitably lead to regulation of the industry. The survey “revealed overwhelming support in favour of regulation, with the Civil Mediation Council as the preferred body”.
It would appear that the mediation profession is both ready and willing to take on compulsory mediation.
Jacqui Joyce is a member of The Property Mediators, whose members specialise in mediating property disputes
