UPDATE: THE STATE OF UK MEDIATION

September 2010

Source:

The 4th Mediation Audit (2010) carried out by CEDR. A full copy can be read by clicking here ››

Content:

The Audit contains interesting statistics and attitudes to mainstream commercial and civil mediations.

Quick overview:

The mainstream mediation market has almost doubled since the last Audit in 2007.

About 75% of cases settle on the day, with a further 14% settling shortly afterwards.

There are interesting findings as to what most contributes to, and detracts from, settlement (see below). David Cornes is writing an article about how to get the best out of mediation that will touch in detail on this area. The spreading of knowledgeable participation by everyone involved in mediation will be at the centre of the article. It will be published on his Web Site before the end of 2010.

The Detail:  Facts about mediation activity in the UK are hard to come by. CEDR deserves great credit for performing this survey which was contributed to by both mediators and lawyers. With acknowledgements to CEDR, some of the highlights are as follows.

Nearly 65% of ad hoc cases are now being handled direct with mediators rather than through providers (as compared to 60% in 2007, 55% in 2005 and 45% in 2003).  As might be expected, direct referral activity is particularly prevalent amongst the most experienced mediator group, nearly two-thirds of whom obtained more than half of their work from direct referrals, with around 40% exceeding 80% direct referrals, and 22% claiming to be totally free of providers.

CEDR estimate the total market at about 6,000 mediations per annum which is nearly double the number in 2007. The biggest part of that increase is in schemes such as the National Mediation Helpline, Court of Appeal Mediation Scheme and others in the civil and commercial arena. There is a very small increase in the number of mediations going through providers and much bigger increase in referrals direct to mediators. Excluding scheme activity, CEDR estimates that mainstream ad hoc commercial casework has risen by around 30% since 2007.

CEDR report increasing competition between service providers. Given that this is a CEDR audit, it is perhaps not surprising that 24% of respondents said that they regularly mediate through CEDR, with half of that number also working with at least one of the other leading providers in England & Wales (of which there are five). It was surprising that over 50 other bodies were named by respondents as being organisations they regularly mediate with.

Unsurprisingly, professional reputation, experience and status were regarded by both mediators and lawyers who took part in the audit as being the most important factor in mediator choice.  Professional background and mediation style are also both relatively high factors, although mediators and lawyers do not seem to agree as to which is the most important.

The most important contributors to settlements in mediation identified by mediators were preparation (by clients, mediators and lawyers, in that order) outweighing the impact of negotiation skills and specific mediator techniques, such as reality testing. As to non-settlements, mediators generally offered explanations of intransigent parties, unrealistic expectations and fishing expeditions with no real desire to settle.  However, the role of Conditional Fee Agreements emerged as a factor, with some mediators citing instances where high uplifts on claimants’ solicitors costs had become out of all proportion to the other issues in dispute, resulting in conflicts of interest between solicitor and client leading to another barrier to settlement.  

The value of cases mediated each year is somewhere near £5.1 billion (2007 £4.1 billion), if the effect of some mega sized cases is excluded. Mediation this year will save business around £1.4 billion in otherwise wasted management time, damaged relationships, lost productivity and legal fees. The Ministry of Justice has reported that during 2008/9, ADR was used by government departments in 314 cases, saving costs estimated at about £90.2 million.

The 4th Mediation Audit (2010) merits reading in full. Click here ››