The 2018 eighth biennial audit published recently by CEDR (Centre for Effective Dispute Resolution) makes interesting, if not entirely surprising, reading for those interested in commercial and civil mediation.  This audit does not cover family, community, ACAS or The Court Service Small Claims mediations.

Mediations are confidential and accordingly all statistics about numbers, settlement rates etc must be viewed with a degree of caution.    Nevertheless, the audit is based on a survey completed by 336 UK based mediators, who represent more than 50% of the individual membership of the CMC (Civil Mediation Council) – a statistically significant sample.

The main conclusions of the audit are as follows:

  • Mediations in the civil and commercial fields have increased from 10,000 in 2016 to 12,000 in 2018; the greater part of this increase flowing from organised schemes such as those supported by NHS Resolution, leading employers and by courts such as the Court of Appeal.
  • The overall settlement rate remains high at 89% (up from 86% in 2016) with 74% (67% in 2016) settling on the day and 15% (19% in 2016) settling shortly afterwards.
  • 45% of all cases now settle by mediation, compared with 43% which settle by negotiation and 12% which resolve by trial (4%), arbitration or another ADR process. Comparative figures for 2016 are not available.
  • 49% of mediators responding to the survey were legally qualified. This is up from 43% for respondents to the 2016 survey, but down from the 62% who responded to the 2012 survey. Women account for 35% of respondents (no change from 2016) and BAME groups 10% (8% for 2016).
  • About 200 mediators (145 in 2016) are instructed in around 85% of non-scheme commercial cases.

In addition to mediators who responded to the survey, lawyers instructing mediators also responded, listing the following factors (top five) in order of preference when choosing a mediator: availability, professional reputation (experience/status), sector experience, fee levels, professional reputation (mediation style).

Most lawyers seemed satisfied with the performance of mediators, 83% (2016, 81%) being rated as performing very well or quite well and 13% (2016, 14%) as performing adequately.  The remaining 4% (2016, 5%) were rated as performing less than adequately, with just 1% (no change from 2016) rated as very poor.

Mediators were, in turn, asked to rate the performance of lawyers and clients whom they encountered at mediations.  For lawyers, 63% (69% in 2016) were perceived as having performed very well or quite well, 23% (2016, 19%) as performing adequately and 14% (2016, 12%) as less than adequately with 5% being very poor.  The figures for clients are similar.

CEDR comments that the majority of lawyers are familiar with the mediation process and are getting better at working within it, but about 15% are lagging behind.

As to trends, the audit notes increasing resistance (from lawyers, it seems) to the traditional joint meeting at the start of the day, although there appears to be an increase in joint meetings during the day as, perhaps, parties begin to see the advantages of face to face discussions.  There also seems to be an increase in contested probate cases.

The audit also, for the first time, sought responses from US based mediators. A separate report of what they had to say will be issued in due course.  This will be interesting as the UK market tends to follow what happens in the USA.