CEDR has just published its latest (ninth) audit of the civil and commercial mediation market. https://www.cedr.com/ninth-mediation-audit-2021/ Normally biennial, this audit was delayed by the pandemic and also incorporates findings from the first six months of lockdown. The audit reflects the responses of 361 mediators (up from 336 in 2018), and is statistically significant, if not comprehensive. The audit does not cover community or family mediation. It must also be borne in mind that mediation is a confidential process, so there can be no definitive corroboration of its findings, the most significant of which are as follows:
- Mediations increased by 38% (pre-lockdown) from 2018, although almost all of this gain was, temporarily one assumes, wiped out by the pandemic. 74% of ad hoc mediations are referred directly to individual mediators, the balance coming from service providers or schemes such as those supported by NHS Resolution, leading employers and the courts.
- Settlement rates were 93%, 72% on the day and a further 21% shortly afterwards.
- The value of cases mediated each year is £17.5bn, with an estimated £4.6bn being saved in terms of legal costs, management time etc.
- Total income for the mediation profession is c£50m, the vast majority of which is shared among the c200 ‘advanced’ mediators who mediate about 85% of all ad hoc commercial cases. Mediators outside this group typically undertake no more than four cases a year.
- 44% of respondent mediators were lawyers (49% in 2018). 41% of the ‘advanced’ group are women (24% in 2018). 8% report non-white backgrounds (10% in 2018).
- Pre-pandemic, c10% of mediations were conducted online by a small minority of mediators. Unsurprisingly, post-lockdown this figure rose to 89%. Most mediators felt comfortable with online mediations, whereas lawyers were significantly less comfortable. About 20% of both groups felt positively uncomfortable with the process.
- Looking ahead, about 70% predict an increase in online mediation with more cross-border work and a decrease in mediation costs.
- Lawyers judged about 75% of mediators to have performed very or quite well (83% in 2018) but 13% performed less than adequately (14% in 2018).
- Mediators, in turn, reported 70% of lawyers and clients performing very or quite well at mediations but 14-16% performing less than adequately, with over-reliance on advisers, poor negotiation strategy and group think being the main barriers to good performance.
- The audit makes the point that clients and lawyers need to be remember that negotiation in mediation is a process of persuasion. One mediator advising: ‘think about what you can say or do that will help the other party walk towards you’. Another counselled: ‘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’.
- The trend, reported in the 2018 audit, for lawyers and clients to resist joint meetings continues. Most mediators prefer a joint meeting, one commenting: ‘Resistance to joint meetings…makes the process…less likely to be successful…lawyers do not seem to grasp…the…very real difference between mediation and negotiation. Too many lawyers and parties see it as a positional-bargaining or horse-trading exercise leading to a lose/lose rather than a win/win outcome’.
The report shows the significant and increasing contribution that mediation makes to dispute resolution. Some work is still needed to ensure that the parties and their advisers get the most out of the process and there is scope for further diversification within the mediation profession.