Every two years The Centre for Effective Dispute Resolution (CEDR) publishes its survey of civil and commercial mediators and lawyers in the UK mediation industry. The bulk of this year’s report looks at data for the year to March 2020, ie immediately before the pandemic, but it also highlights the remarkable resilience of the industry in coping with the pandemic.
Is mediation still relevant?
The report – The Ninth Mediation Audit (CEDR, 2021) – estimates in the order of 16,500 cases are mediated per annum – a 38% increase on 2018. Of these, more than 8,000 were by direct referrals (rather than through schemes or providers), although just over 30% of all mediation activity is via schemes such as those supported by NHS Resolution, leading employers and the courts.
The impact of the pandemic triggered a downturn in mediation activity, which dropped by 35% over the period March to September 2020. This drop would undoubtedly have been far more severe were it not for the rapid upsurge in online mediation over this period.
The reported value of cases mediated each year is approximately £17.5bn and the total savings in costs etc this year due to commercial mediations are £4.6bn. This is from an industry where the total fee income is around £50m. Not a bad return on investment.
Does it still work?
The overall success rate of mediation remains very high, with an aggregate settlement rate of 93% (up from 89% in 2018). Settlement on the day of the mediation is 72% (2018: 74%) and shortly after the mediation is 21% (2018: 15%). While the rate of on-the-day settlement has remained steady, the significant increase in those settling after the day is an encouraging trend.
Performance in mediation
Encouragingly, mediators have reported an increase in lawyers and clients performing very well or quite well in mediations: lawyers 71% (2018: 63%) and clients 70% (2018: 61%). Unfortunately, there are still around 14% of lawyers and 16% of clients rated by mediators as performing poorly or very poorly. Lawyers rated 71% (2018: 70%) of their counterparts, and 71% (2018: 72%) of clients as having performed well or very well with just 9% (2018: 14%) of lawyers and 14% (2018: 10%) of clients performing poorly.
When lawyers were asked about mediators’ performance, an increased proportion were reported as performing very well, 62% (2018: 53%), although the number performing badly has also increased to 13% (2018: 4%).
Mediators were asked about the problems they come across in mediations (see table below). It is interesting that the top three appear to be getting steadily worse over the years.
When asked what advice they would give to parties about how to improve their performance, mediators overwhelmingly cited the need for more thorough preparation. They also highlighted the importance of remembering that negotiation is a process of persuasion, with one commenting: “You are trying to persuade the other side to say yes, not batter them down. No one likes to agree with someone who is punching them in the face. Therefore, you need to think beforehand and during the mediation about how you are going to encourage the other side to say yes and think from their perspective as to what they need, not yours.”
Frequently or almost always observed by mediators
|
2020 |
2018 |
2016 |
|
|
Over-reliance on advisers |
53% |
42% |
48% |
|
Poor negotiation strategy |
48% |
43% |
39% |
|
Group think |
42% |
36% |
41% |
|
Avoidance |
24% |
26% |
24% |
|
Inter-personal conflict within team |
14% |
21% |
14% |
|
Disagreement about strategy |
14% |
16% |
7% |
Source: The Ninth Mediation Report (CEDR, 2021)
Who are the mediators?
Division of work?
The report states: “The marketplace remains dominated by a select few, with a group of around 200 individuals involved in round 85% of all ad hoc commercial cases (ie an average of 35-40 cases each). The size of this group has not changed since the level reported in 2018 and indeed there are some signs of further consolidation – within that group of 200, the 120 busier mediators (ie those undertaking over 20 cases a year) now handle 73% of cases, up from 69% in 2018”.
The vast majority of novice or intermediate mediators reported involvement in no more than four mediations a year. Within those classifying themselves as advanced, full-time mediators (51%) reported undertaking less than 10 mediations a year.
Gender
Female involvement in the field continues to increase and, for the first time, there is a significant proportion of women, 41% (2018: 24%) in the advanced group. This is catching up with comparators such as the Law Society where 49% of solicitors in private practice (or 31% of private practice partners) are women.
Age
The age of the average female mediator is 53 (2018: 51% – the same people two years later?) and male 60 (2018: 59).
Professional background
The stranglehold of the ex-legal practitioner is weakening. Some 44% of respondents were qualified lawyers, a reduction from 49% in 2018. Most of that reduction is in the novice and intermediate category (generally new entrants to the profession). Among advanced mediators, qualified lawyers remain in the majority, at 56%, (2018: 61%)
Ethnic diversity
Only 8% of mediators report coming from a non-white background. Looking at the Law Society comparator, the non-white proportion of solicitors is 17%.
The report looks in detail at how the issue of diversity is viewed and might be tackled, referring to CEDR’s 2019 research report on improving diversity in commercial mediation. It concludes that the most significant perceived barriers to greater diversity relate to the challenge of career progression (ie getting selected for cases). There are also obstacles at the start of the process, including insufficient awareness and economic challenges around obtaining training and early experience.
A concern was expressed by a number of respondents that the real lack of diversity in the profession arises from the relatively small number of mediators who have so far been able to establish a successful practice. This would apply to all would be mediators and not just those from an ethnic background.
The table below shows what criteria mediators and lawyers rate as being significant in determining why appointments are made. “Professional reputation – experience/status” has long been the clear winner with both. It is notable that “professional background/qualifications” continues to show a mismatch between mediators’ and lawyers’ priorities and that “professional reputation – mediation style” is rising in importance for lawyers, while “recommendation – by provider” is falling back.
The impact of Covid-19
In the 12-month period immediately prior to the pandemic around 10% of commercial mediations were being conducted online (by a very small group of only 2% of respondents doing more than 10 online mediations).
After lockdown this changed markedly. In the six-month period from March to September 2020, the number of commercial mediations fell by 35%. However, 89% of those were conducted online with 71% of mediators switching their practice to online.
Mediators are more comfortable with online mediation than lawyers. When marking out of 10, 19% of mediators and 13% of lawyers reported a comfort level of less than 1. However, 30% of mediators, but only 10% of lawyers, gave comfort levels of above 9 out of 10.
The positives for online mediation include 91% of respondents citing general “ease of access”, eg from the avoidance of travel and the flexibility of parties having more choice as to where they are located for the mediation. A few described participants as feeling “safer” or “more relaxed” in their own space.
Only 14% of mediators mentioned technology issues as a concern, but 84% observed that the online medium was less effective for them in terms of building rapport, reading the room, and generally making connections with individuals.
A significant majority of mediators thought that the emergence of online mediation will increase the overall level of mediation activity (73%) as did 45% of lawyers. Both were positive that willingness to participate in mediation would increase as a result of online mediation.
Over three quarters of mediators are expecting to be undertaking more online than face-to-face mediations in 2021, the average predicting 65% being online with lawyers predicting 65-70%.
I suspect there will be a mixture of online and face-to-face mediations in the future to suit the needs of each individual case but at least this can now be considered in a scenario where we know online mediations work.
Jacqui Joyce is a member of The Property Mediators, whose members specialise in mediating property disputes
Click here to read the full report