The seventh biannual CEDR Mediation Audit, run by the Centre for Effective Dispute Resolution in conjunction with the Civil Mediation Council, was released this month and shows some interesting changes to the trends of past years.
The marketplace
It would appear that there has been a slowing down of growth in the number of mediations. 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 ad hoc 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
Only 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 female mediators is 50 and for men 57, with 35% being women (increased from 26% in 2014). Most of this increase, however, appears to be in the “novice” group of mediators, which saw a rise from 30% to 42%
Diversity figures, while slightly better than in 2014, still show white mediators making up 92% of respondents.
Non-lawyer mediators
For the first time less than half of the respondents were legally qualified (43%) and 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 fourth, mediators seventh) and availability (lawyers sixth, mediators fourth).
Interestingly, 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 and, 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 risk 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
Mediators report that 69% of lawyers and 64% of clients perform “quite well” or “very well” at mediations with 19% and 21% respectively performing “adequately”. This still leaves 12% of lawyers and 15% of clients performing “less than adequately” and 5% and 6% respectively rated as “very poor”. Again anecdotally, mediators often cite the performance of lawyers as a reason why a mediation will fail.
The biggest areas of concern mediators encountered at mediations 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 has 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”, and 4% “less than adequate”, with only 1% rated as “very poor”. Examples are given of common complaints linked to perceived bias of the mediator and those who “acted as a messenger”, presumably without bringing any added value to the table other than shuttling between parties with offers.
The report touches on the question of whether mediators act in a fully facilitative way or whether they are also evaluative. Most say they are facilitative but suspect that the parties want them to be more evaluative, and many seem to agree that, as the day goes on, they may go more towards 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 £10.5bn (up from £9bn in 2014). It also estimates that mediations will save businesses around £2.8bn 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 £26.5m.
Mediation awareness
One point on which mediators and lawyers agreed was that they still see a significant need for further promotion of the benefits of mediation. In the UK there will be a Mediation Awareness Week on 8-14 October, which will hopefully go some way to helping with this. For more details go to www.mediationawarenessweek.org.uk.
Jacqui Joyce is a member of The Property Mediators, whose members specialise in mediating property disputes:
www.thepropertymediators.co.uk
